[55]For purposes of the present case I consider it unnecessary to consider such criticism nor what the present standing of Bowers is in the United States. Our 1996 Constitution differs so substantially, as far as the present issue is concerned, from that of the United States of America that the majority judgment in Bowers can really offer us no assistance in the construction and application of our own Constitution. The 1996 Constitution contains express privacy and dignity guarantees[1] as well as an express prohibition of unfair discrimination on the ground of sexual orientation, which the United States Constitution does not. Nor does our Constitution or jurisprudence require us, in the way that the United States Constitution requires of its Supreme Court, in the case of “… rights not readily identifiable in the Constitution’s text,” to “… identify the nature of the rights qualifying for heightened judicial protection”.[2]
[56]There are other democratic countries beside the United States which have not yet decriminalised sodomy in private between consenting adult males. Unlike the constitutions of these countries, however, our 1996 Constitution specifically mentions “sexual orientation” as a listed ground in section 9(3) on which the state may not unfairly discriminate, it being presumed (until the contrary is established) that discrimination on such ground constitutes unfair discrimination and thus a breach of section 9.[3]
