More than six months after the hearing, the Constitutional Court finally brought some Christmas cheer when it handed down judgement in the case of Minister of Home Affairs v Fourie. The length of time the court took to decide on the constitutionality of gay marriages led many to believe that the court was divided, and that conflicting judgements would be handed down.
But the decision to declare the common law (which provides that marriage is a union of one man to one woman to the exclusion of others) unconstitutional was unanimous. The court was, however, divided on what would be the appropriate relief to be granted.
The main judgement was written by Judge Albie Sachs. He based his finding on previous cases where the court had found that there were a multitude of family formations in our society. To exclude same-sex couples from the benefits and responsibilities of marriage implied that these couples were ”outsiders” and less deserving of concern and respect than heterosexual couples.
Judge Sachs said: ”A democratic, universalistic, caring and aspirationally egalitarian society embraces everyone and accepts people for who they are. To penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality.”
The case of gay marriages also confronts the question of belief and reliance on religious texts. The court was careful to note that the alteration of the law to recognise gay marriages did not compel any religious officer to marry a couple in circumstances where his or her religious convictions dictated otherwise.
The only rift in the judgement was between the majority of the court and Judge Kate O’Regan, and it concerned the relief to be granted by the court.
When the matter was heard in the Supreme Court of Appeal, the majority of that court held that the common law could be interpreted to read ”marriage is a union of two persons to the exclusion of all others”. The minority held that Parliament should be given time to change the law.
The Constitutional Court judges, save for Judge O’Regan, favoured the minority approach. The reasoning, articulated by Judge Sachs, was that, in the light of the significance of this issue and the sensitivities involved, it was appropriate for the legislature to provide for the relief indicated by the judgement.
Judge O’Regan opined that it would have been desirable if the problem had been resolved by Parliament without recourse to litigation. However, the corollary did not apply, namely that the court should grant no relief to a successful litigant simply because it might be thought that an Act of Parliament conferring marriage rights on gay couples could have greater legitimacy. As she noted, courts have a duty to protect constitutional rights. In this case an order that changed the common-law definition of marriage was hardly likely to undermine the institution of marriage and, in any event, it followed logically from the finding of the court.
Judge O’Regan’s proposed solution, which was similar to that of the majority of the Supreme Court, is conceptually the more coherent. Once the court found that the common-law rule was unconstitutional, the only question was whether the possible solutions were so complex that only Parliament could deal with the matter. As this was not the case, the court could easily have changed the common law. That the majority failed to do so is a failure of the judicial nerve. It is up to the courts to purge the common law of prejudice and not doing so represents a voluntary shrinkage of its authority.
That criticism aside, the majority judgement reveals the possibility of constitutional influence in the development of a legal system that is able to celebrate the vitality that difference can produce in our society. Thus, those who are looking to return to some fractured body of African customary law might want to ponder this judgement. Instead of propagating a glorified, populist vision that fails to be supported by concrete details of a ”new” legal system, the debate should concentrate on the opportunities afforded by the Constitution to instil into all our law values that embrace an egalitarian society in which our diversity informs our public discourse. By promoting this vision in the Fourie judgement, the Constitutional Court has prodded the legal community to move in the direction of the development of a transformed jurisprudence.