the papers, at least two different legislative pathways have been proposed. Although the constitutional terminus would be the same, the legislative formats adopted for reaching the end-point would be vastly different. This is an area where symbolism and intangible factors play a particularly important role. What might appear to be options of a purely technical character could have quite different resonances for life in public and in private. Parliament should be given the opportunity in the first place to decide how best the equality rights at issue could be achieved. Provided that the basic principles of equality as enshrined in the Constitution are not trimmed in the process, the greater the degree of public acceptance for same-sex unions, the more will the achievement of equality be promoted.
[140]Thus, Parliament could decide that the best way of achieving equality would be to adopt the first option placed before it, namely, the simple reading-in of the words “or spouse” in section 30(1) of the Marriage Act. This would be consistent with the position of the SALRC at the time when the proceedings were initiated, which indicated that it regarded reading-in of suitable words into the Marriage Act as one of three permissible options for public and legislative consideration.[1]
- ↑ The second option which it adopted at that stage was to abolish secular marriage as a legal institution and replace it with a civil union which would produce effects similar to marriage but be available for both heterosexual and same-sex couples. The third option which it then proposed was to establish a form of registered partnerships for same-sex couples which would operate alongside of and have the same legal status and consequences as marriage for heterosexual couples. It was the availability of these three options that led Farlam JA to decide to suspend the order of invalidity he would have made, so as to allow Parliament to make the choice. He made no pronouncement on their constitutionality. Fourie (SCA) above n 12 at paras 139–41.
