affected. It is when separation implies repudiation, connotes distaste or inferiority and perpetuates a caste-like status that it becomes constitutionally invidious.
[153]In the present matter, this means that whatever legislative remedy is chosen must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of the intangibles as well as the tangibles involved.[1] In a context of patterns of deep past discrimination and continuing homophobia, appropriate sensitivity must be shown to providing a remedy that is truly and manifestly respectful of the dignity of same-sex couples.
Should there be an interim remedy?
[154]In coming to the conclusion that the declaration of invalidity should be suspended I am not unmindful of the fact that this case started simply with the desire of two people, who happen to be of the same-sex, to get married. The effect of the suspension of the order of invalidity will be to postpone the day when they can go to a registry and publicly say “I do.” I have considered whether interim arrangements should be ordered similar to those provided for in Dawood.[2] I have come to the conclusion, however, that such an arrangement would not be appropriate in the present
- ↑ In the landmark case of Brown v Board of Education 347 US 483 (1954), the United States Supreme Court overturned the notorious separate but equal doctrine as affirmed in Plessy v Ferguson that had authorised segregated facilities for persons classified as Negroes. Chief Justice Warren stated:
“We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though that physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe it does.” (At 493.)
- ↑ Above n 132. When suspending a declaration of invalidity of a provision concerning certain privileges of immigrants married to South Africans, this Court provided in the order for a set of interim guidelines to fill the gap. At paras 64–8.
