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Ackermann J

sexual relations with one another; this being a decision entirely within their protected sphere of freedom and privacy.

[52]I find support for this view in the following conclusions of L’Heureux-Dubé J (with whom Cory and McLachlin JJ concurred) in Mossop:[1]

“The argument is that procreation is somehow necessary to the concept of family and that same-sex couples cannot be families as they are incapable of procreation. Though there is undeniable value in procreation, the Tribunal could not have accepted that the capacity to procreate limits the boundaries of family. If this were so, childless couples and single parents would not constitute families. Further, this logic suggests that adoptive families are not as desirable as natural families. The flaws in this position must have been self-evident. Though procreation is an element in many families, placing the ability to procreate as the inalterable basis of family could result in an impoverished rather than an enriched version.”

[53]The message that the total exclusion of gays and lesbians from the provisions of the sub-section conveys to gays and lesbians and the consequent impact on them can in my view be conveniently expressed by comparing (a) the facts concerning gays and lesbians and their same-sex partnerships which must be accepted, with (b) what the subsection in effect states:

(a)
(i) Gays and lesbians have a constitutionally entrenched right to dignity and equality;
(ii) Sexual orientation is a ground expressly listed in section 9(3) of the Constitution and under section 9(5) discrimination on it is unfair unless

  1. Above n 43 at 710 c–e and the judgment of Thomas J in Quilter above n 25 at 534.

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