Over the past year this column has concentrated on an evaluation of the law as it has been developed by our courts during the first decade of constitutional democracy. It is perhaps appropriate that two of the most important judgements of the past decade have been delivered in the past month, being the Metrorail judgement by the Constitutional Court and the Supreme Court of Appeal’s judgement in Fourie and Another v Minister of Home Affairs and Others, the so-called gay marriage case.
In Metrorail, the court imposed an obligation on a provider of a crucial public service to be accountable to the commuters it serves and thus to ensure that the safety of commuters is properly protected. The significance of this decision is its recognition of the existence of positive rights that are owed by the state and all state organs to the citizenry. As important a decision as this was, it did not head the court into the teeth of the wind of public opinion in the manner of Fourie’s case. The latter is truly a decision that shows how a constitutional value may trump public opinion.
In Fourie, two women sought a declaration from the court that marriage is not reserved exclusively for couples of the opposite sex. On behalf of the majority of the court, Judge Edwin Cameron wrote that ”marriage and the capacity to get married remain central to our self-definition as humans … The capacity to choose to get married enhances the liberty, the autonomy and the dignity of a couple committed for life to each other … The current common law definition of marriage deprives same-sex couples of this choice.”
Judge Cameron went on to say that this exclusionary definition of marriage injures gay and lesbian couples because it produces a legal censure of their relationships and commitments of one to the other. Legal exclusion that undermines the dignity of individuals or groups has consistently been held to be unconstitutional. Thus, a common law rule that is incompatible with the innermost commitments of the Constitution must be altered. As Judge Cameron eloquently noted, ”as we came from oppression by law [we] resolved to seek our future free from oppression, in regulation by law”. Thus, a common law rule that inflicts pain and indignity and perpetuates exclusion that cannot be rationally justified has no place in our constitutional society.
Regarding the justification for the reservation of marriage for heterosexual couples who can procreate, Judge Cameron, citing the authority of the Constitutional Court, held that procreative potential is not a defining characteristic of conjugal relationships. The additional fact that the majority of South Africans view marriage through a heterosexual prism is irrelevant because a court’s duty lies with the Constitution, not transient public opinion, even though the court bore a heavy burden of explaining ”what that duty entails to the nation”.
On this basis, the court held that the common law definition of marriage had to be altered to embrace same-sex couples so that, from now on, marriage is a union of two persons to the exclusion of others.
This decision does not mean that gay and lesbian marriages can immediately take place nor does it impinge on the religious freedom of those ministers of religion who do not wish to marry a gay or lesbian couple.
The Marriage Act contains a formula to be recited when a marriage is performed. This formula refers to a husband and wife. Until the minister of home affairs approves a formula to accommodate a gay or lesbian marriage, or the Constitutional Court sets aside the present formula, the latter cannot be performed.
This judgement represents further development of our constitutional society. It is understandable that a segment of society will vehemently disagree with the result. But Fourie’s case is unlikely to have the effect of the Goodridge judgement, delivered by the Massachusetts Supreme Court, where its declaration of the legality of gay and lesbian marriages had so profound an effect on the presidential election. There has been some protest here but hardly of the prejudicial steam that helped propel George W Bush to a threatening second term. However, the development of the common law in this direction does require that the public be better informed of the nature of a constitutional society in which certain foundational values are placed beyond the reach of a transient majority. But that aside, the Supreme Court of Appeal’s decision is testimony to how far this country has already travelled toward the society prefigured in our Constitution.