II. The Issues
[45]At the hearing two broad and interrelated questions were raised: The first was whether or not the failure by the common law and the Marriage Act to provide the means whereby same-sex couples can marry, constitutes unfair discrimination against them. If the answer was that it does, the second question arose, namely, what the appropriate remedy for the unconstitutionality should be. These are the central issues in this matter, and I will start with the first.
Does the law deny equal protection to and discriminate unfairly against same-sex couples by not including them in the provisions of the Marriage Act?
[46]Counsel for the Minister of Justice argued that the Constitution did not protect the right to marry. It merely guaranteed to same-sex couples the right to establish their own forms of family life without interference from the state. This was a negative liberty, not to be equated with a right to be assimilated into the institution of marriage, which in terms of its historic genesis and evolution, was heterosexual by nature. International law recognised and protected marriage as so understood. Same-sex couples accordingly had no constitutional right to enter into or manipulate that institution. If their form of family life suffered from particular disadvantages, then these should be dealt with by appropriate legal remedies in response to each of the identified problems, not by entry into the global set of rights and entitlements
issues were formally presented at the outset of the Fourie application. Its preliminary objection cannot be sustained.
