Page:NCGLE v Minister of Home Affairs.djvu/55

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Ackermann J

[56]In the second place there is no rational connection between the exclusion of same-sex life partners from the benefits under section 25(5) and the government interest sought to be achieved thereby, namely the protection of families and the family life of heterosexual spouses. No conceivable way was suggested, nor can I think of any, whereby the appropriate extension of the section 25(5) benefits to same-sex life partners could negatively effect such protection. A similar argument has been roundly rejected by the Canadian Supreme Court,[1] which Court has also stressed, correctly in my view, that concern for the protection of same-sex partnerships in no ways implies a disparagement of the traditional institution of marriage.[2]

  1. In M v H above n 45 at para 109 Iacobucci J, writing for the Court, said the following:

    “Even if I were to accept that Part III of the Act is meant to address the systemic sexual inequality associated with opposite-sex relationships, the required nexus between this objective and the chosen measures is absent in this case. In my view, it defies logic to suggest that a gender-neutral support system is rationally connected to the goal of improving the economic circumstances of heterosexual women upon relationship breakdown. In addition, I can find no evidence to demonstrate that the exclusion of same-sex couples from the spousal support regime of the FLA in any way furthers the objective of assisting heterosexual women.”

  2. In Mossop above n 43 at 712 d L’Heureux-Dubé J said the following:

    “[I]n some ways, the debate about family presents society with a false choice. It is