Page:Fourie v Minister of Home Affairs (SCA).djvu/15

Rh The justification respondents' counsel suggested in this case was in essence that the procreative purpose that is usually and rightly associated with marriage requires that the institution be restricted to heterosexual couples only. But this does not pass. The suggestion that gays and lesbians cannot procreate has already been authoritatively rejected as a mistaken stereotype. In any event the Constitutional Court has held that ‘from a legal and constitutional point of view procreative potential is not a defining characteristic of conjugal relationships’.

The appellants moreover do not seek to limit procreative heterosexual marriage in any way. They wish to be admitted to its advantages, notwithstanding the same-sex nature of their relationship. Their wish is not to deprive others of any rights. It is to gain access for themselves without limiting that enjoyed by others. Denying them this, to quote Marshall CJ in the Massachusetts Supreme Court of Judicature, ‘works a deep and scarring hardship on a very real segment of the community for no rational reason.’ Marshall CJ elaborated thus: