certain guiding principles of special constitutional relevance so as to reduce the risk of endless adjudication ensuing on a matter which both evokes strong and divided opinions on the one hand, and calls for firm and clear resolution on the other.
[149]At the heart of these principles lies the notion that in exercising its legislative discretion Parliament will have to bear in mind that the objective of the new measure must be to promote human dignity, the achievement of equality and the advancement of human rights and freedoms.[1] This means in the first place taking account of the fact that in overcoming the under-inclusiveness of the common law and the Marriage Act, it would be inappropriate to employ a remedy that created equal disadvantage for all. Thus the achievement of equality would not be accomplished by ensuring that if same-sex couples cannot enjoy the status and entitlements coupled with the responsibilities of marriage, the same should apply to heterosexual couples. Levelling down so as to deny access to civil marriage to all would not promote the achievement of the enjoyment of equality. Such parity of exclusion rather than of inclusion would distribute resentment evenly, instead of dissipating it equally for all. The law concerned with family formation and marriage requires equal celebration, not equal marginalisation; it calls for equality of the vineyard and not equality of the graveyard.[2]
- ↑ See section 1(a) of the Constitution.
- ↑ See Ackermann J in Home Affairs above n 44 at para 77. It could have been considerations such as these that encouraged the SALRC to drop the option of replacing civil marriage for heterosexual couples only, with the notion of abolishing civil marriage altogether and replacing it with a civil union available both to heterosexual and same-sex couples. This is a matter which this Court is not obliged to consider at this stage.
