right to inheritance, medical insurance coverage, adoption, access to wrongful death claims, spousal benefits, bereavement leave, tax advantages and post-divorce rights.[1]
[71]The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples.
[72]It should be noted that the intangible damage to same-sex couples is as severe as the material deprivation. To begin with, they are not entitled to celebrate their commitment to each other in a joyous public event recognised by the law. They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in
- ↑ In this respect it should be borne in mind that since the abolition of the patriarchal powers once vested by the common law in the husband, spouses enjoy equality in marriage. Same-sex marriages therefore would not be required to replicate between the partners the formerly unequal or divergently stereotyped roles of husband and wife in marriage. The achievement of heterosexual equality thus removed a potentially serious barrier to homosexual equality. In all material respects, then, sexual orientation survives as a neutral factor as far as the conjugal family law interests are concerned. See also the judgment of Farlam JA, Fourie (SCA) above n 12 at para 122.
