The South Africa Marriage Case
On December 1, 2005, the Constitutional Court of South Africa, in Minister of Home Affairs v. Marié Adrianna Fourie, ruled that laws denying same-sex couples the ability to marry violate the equal protection provision of the South Africa Constitution and the provision prohibiting unfair discrimination on the basis of (among other things) sexual orientation. The Court gave Parliament one year to fix the laws to extend equal marital rights to same-sex couples.
Loving v. Virginia (1967), in which the U.S. Supreme Court struck down Virginia’s ban on interracial marriage, is the most aptly named case in all of American jurisprudence. It’s equally appropriate that the lead plaintiff in the South Africa case extending equality in marriage has the first name of Marié.
There is much to admire about the South Africa Court’s decision. It represents the triumph of equality and compassion over exclusion and small-mindedness.
Whatever one’s views about the relevance of foreign legal decisions, there is something to learn from this one. The Constitution of South Africa and the post-Reconstruction Constitution of the United States were both designed to end institutionalized inequality. When South Africa tells us that full equality includes equal access to marriage, we should listen.
Equally striking is the style of the Court’s opinion. Justice Sachs’ opinion for the Court, though a bit long for my taste, is written in plain, clear language accessible to a wide audience. Citations are relegated to the footnotes and there are few of them. Justice O’Regan wrote a short partial dissent stating that in his view the Court should have issued an order requiring marriage rights to be immediately available. All of the other members of the court joined Justice Sachs’ opinion in full.
Here is a representative paragraph from the Court’s opinion (it follows a discussion of the benefits of marriage):
The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples.
A good conclusion supported by clear and powerful reasoning: one can hardly ask for more.