I am unable to accede to this line of argument. It confuses form with substance and does not have proper regard for the operation, experience or impact of discrimination in society. Discrimination does not take place in discrete areas of the law, hermetically sealed from one another, where each aspect of discrimination is to be examined and its impact evaluated in isolation. Discrimination must be understood in the context of the experience of those on whom it impacts. As recognised in the Sodomy case―
“[t]he experience of subordination—of personal subordination, above all—lies behind the vision of equality.”
Moreover, the submission fails to recognise that marriage represents but one form of life partnership. The law currently only recognises marriages that are conjugal relationships between people of the opposite sex. It is not necessary, for purposes of this judgment, to investigate other forms of life partnership. Suffice it to say that there is another form of life partnership which is different from marriage as recognised by law. This form of life partnership is represented by a conjugal relationship between two people of the same sex. The law currently does not recognise permanent same-sex life partnerships as marriages. It follows that section 25(5) affords protection only to conjugal relationships between heterosexuals and excludes any protection to a
- Above n 34 at para 22, quoting with approval Michael Walzer Spheres of Justice: A Defence of Pluralism and Equality (Basil Blackwell, Oxford, 1983) at xiii.