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.