“makes clear what was already manifestly implicit in section 8(1) of the interim Constitution, namely that both in conferring benefits on persons and by imposing restraints on State and other action, the State had to do so in a way which results in the equal treatment of all persons.”
Before this Court the respondents challenged the conclusion reached by the High Court that the omission in section 25(5) of spousal benefits to same-sex life partners was a differentiation based on the ground of sexual orientation. It was submitted on their behalf that the differentiation was based on the ground that they were non-spouses, which had nothing to do with their sexual orientation, and that accordingly, because the differentiation was on “non-spousal” grounds, rather than on marital status, it did not constitute unfair discrimination. There is no merit in this submission, because as indicated above in paragraph 25, spouse is defined with regard to marriage and is but the name given to the partners to a marriage.
In the alternative it was argued that, even if the differentiation was on grounds of marital status, there was nothing that prevented gays and lesbians from contracting marriages with persons of the opposite sex, thus becoming and acquiring spouses and accordingly being entitled to the spousal benefits under section 25(5). Therefore, so the submission proceeded, the fact that they did not enjoy the advantages of a spousal relationship was of their own choosing. What the submission implies is that same-sex life partners should ignore their sexual orientation and, contrary thereto, enter into marriage with someone of the opposite sex.
- The Sodomy case above n 34 at para 59.