Page:Fourie v Minister of Home Affairs (SCA).djvu/16

Rh ‘Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.’ (para 57)

It is for this reason that the question of extending marriage to same-sex couples involves such intense and pure questions of principle. As Sachs J has observed in a different setting, ‘because neither power nor specific resource allocation are at issue, sexual orientation becomes a moral focus in our constitutional order’. The focus in this case falls on the intrinsic nature of marriage, and the question is whether any aspect of same-sex relationships justifies excluding gays and lesbians from it. What the Constitution asks in such a case is that we look beyond the unavoidable specificities of our condition—such as race, gender and sexual orientation—and consider our intrinsic human capacities and what they render possible for all of us. In this case, the question is whether the