access to common law marriage is not the answer, constitutionally or otherwise. Appropriate relief from the discriminatory consequences, invasions of privacy and dignity involves
“an exercise of coherent, all embracing law making, which may have to overtake and undo existing Constitutional Court decisions. It may therefore be counterproductive for the [Constitutional Court] to make far-reaching revision of the common law by redefining marriage in this case.”
It followed, the state contended, that the Equality Project was incorrect in seeking an order from this Court declaring the common law definition of marriage and the prescribed marriage formula in section 30(1) of the Marriage Act to be unconstitutional. Any previous concession on behalf of government that the exclusion of same-sex couples from marriage was unconstitutional, was retracted. Should the Court find, however, that the exclusion was unconstitutional, the state argued in the alternative that any order of invalidity should be suspended to enable Parliament, after extensive public debate, to deal with the matter through appropriate legislation. The relief sought, the state contended, went beyond the powers of the Court.
Amici curiae
[37]Prior to the hearing, applications were made by Doctors For Life International and its legal representative Mr John Smyth, to be admitted as amici curiae. They sought to lead further evidence and to make written submissions, while Mr Smyth in addition requested leave to make oral submissions. Their application to adduce
