[98]It is clear from the above that acknowledgement by the state of the right of same-sex couples to enjoy the same status, entitlements and responsibilities as marriage law accords to heterosexual couples is in no way inconsistent with the rights of religious organisations to continue to refuse to celebrate same-sex marriages. The constitutional claims of same-sex couples can accordingly not be negated by invoking the rights of believers to have their religious freedom respected.[1] The two sets of interests involved do not collide, they co-exist in a constitutional realm based on accommodation of diversity.
The international law argument
[99]Considerable stress was placed by the state on the contention that international law recognises and protects heterosexual marriage only. As such, the state contended, it could not be regarded as unfair discrimination to exclude same-sex couples from the institution of marriage. The remedy to the plight of same-sex couples should therefore be found outside of rather than inside marriage. Thus, reference was made to article 16 of the 1948 Universal Declaration of Human Rights (UDHR) which states:
- ↑ See too Sodomy above n 6 at para 137:
“The fact that the State may not impose orthodoxies of belief systems on the whole of society has two consequences. The first is that gays and lesbians cannot be forced to conform to heterosexual norms; they can now break out of their invisibility and live as full and free citizens of South Africa. The second is that those persons who for reasons of religious or other belief disagree with or condemn homosexual conduct are free to hold and articulate such beliefs. Yet, while the Constitution protects the right of people to continue with such beliefs, it does not allow the State to turn these beliefs—even in moderate or gentle versions—into dogma imposed on the whole of society.”
It should be added that, conversely, the Constitution does not allow the state to impose an orthodoxy of secular beliefs on the whole of society, including religious organisations conducting religious activities as protected by the Constitution.
