common law denies gays and lesbians who wish to solemnise their union a host of benefits, protections and duties. Legislation has ameliorated,[1] but not eliminated,[2] the disadvantage same-sex couples suffer.[3] More deeply, the exclusionary definition of marriage injures gays and lesbians because it implies a judgment on them. It suggests not only that their relationships and commitments and loving bonds are inferior, but that they themselves can never be fully part of the community of moral equals that the Constitution promises to create for all.
[16]The vivid message of the decisions of the last ten years is that this exclusion cannot accord with the meaning of the Constitution, and that it ‘undermines the values which underlie an open and democratic society based on freedom and equality’.[4] In the absence of justification, it cannot but constitute unfair discrimination that violates the equality and other guarantees in the Bill of Rights.
- ↑ National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 37 (‘A notable and significant development in our statute law in recent years has been the extent of express and implied recognition the Legislature has accorded same-sex partnerships’).
- ↑ J v Director General: Department of Home Affairs 2003 (5) SA 621 (CC) para 23 (‘Comprehensive legislation regularising relationships between gay and lesbian persons is necessary’).
- ↑ Compare Halpern v Attorney-General of Canada 225 DLR 529 (Ontario Court of Appeal) para 104 (piecemeal legislation extending benefits to same-sex couples may impose preconditions while ‘married couples have instant access to all benefits and obligations’).
- ↑ Tshepo L Mosikatsana ‘The Definitional Exclusion of Gays and Lesbians from Family Status’ (1996) 12 SAJHR 549 566.
