Sachs J
“(i) Gays and lesbians have a constitutionally entrenched right to dignity and equality; (ii) sexual orientation is a ground expressly listed in s 9(3) of the Constitution and under s 9(5) discrimination on it is unfair unless the contrary is established; (iii) prior criminal proscription of private and consensual sexual expression between gays, arising from their sexual orientation and which had been directed at gay men, has been struck down as unconstitutional; (iv) gays and lesbians in same-sex life partnerships are as capable as heterosexual spouses of expressing and sharing love in its manifold forms, including affection, friendship, eros and charity; (v) they are likewise as capable of forming intimate, permanent, committed, monogamous, loyal and enduring relationships; of furnishing emotional and spiritual support; and of providing physical care, financial support and assistance in running the common household; (vi) they are individually able to adopt children and in the case of lesbians to bear them; (vii) in short, they have the same ability to establish a consortium omnis vitae; (viii) finally, … they are capable of constituting a family, whether nuclear or extended, and of establishing, enjoying and benefiting from family life which is not distinguishable in any significant respect from that of heterosexual spouses.”[1]
[54]The provision in question stated in effect that persons in same-sex relationships were not entitled to the benefit extended to married spouses in order to protect their family and family life. This was so notwithstanding that the family and family life were in all significant respects indistinguishable from those of spouses and in human terms as important to gay and lesbian same-sex partners as they were to spouses.
“The message and impact are clear. Section 10 of the Constitution recognises and guarantees that everyone has inherent dignity and the right to have their dignity respected and protected. The message is that gays and lesbians lack the inherent
- ↑ Home Affairs above n 44 at para 53.
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