It follows that same-sex partners are in a different position from heterosexual partners who have not contracted a marriage and have not become spouses. As will be emphasised later in this judgment, it is unnecessary in this case to deal at all with the position of such unmarried heterosexual partners. The respondents’ submission that gays and lesbians are free to marry in the sense that nothing prohibits them from marrying persons of the opposite sex, is true only as a meaningless abstraction. This submission ignores the constitutional injunction that gays and lesbians cannot be discriminated against on the grounds of their own sexual orientation and the constitutional right to express that orientation in a relationship of their own choosing.
There is much to be said for the view that the discrimination in section 25(5) is on the ground of sexual orientation. As previously pointed out, the section 25(5) protection is not extended to the only form of conjugal relationship in which gays and lesbians are able to participate in harmony with their sexual orientation, namely, same-sex life partnerships. A similar conclusion was reached by the Canadian Supreme Court in Canada (Attorney-General) v Mossop, Egan v Canada and M v H.
- Quilter v Attorney-General above n 25 at 537 per Thomas J.
- (1993) 100 DLR (4th) 658 at 672 g – 673 a.
- (1995) 29 CRR (2d) 79 at 141.