Page:Fourie v Minister of Home Affairs (SCA).djvu/17

Rh capacity for commitment, and the ability to love and nurture and honour and sustain, transcends the incidental fact of sexual orientation. The answer suggested by the Constitution itself and by ten years of development under it is Yes.

The remaining justification sought to be advanced—impliedly if not expressly—invokes the acknowledged fact that most South Africans still think of marriage as a heterosexual institution, and that many may view its extension to gays and lesbians with apprehension and disfavour. Six years ago, the Constitutional Court acknowledged that revoking the criminal prohibitions on private consensual homosexual acts touched ‘deep convictions’ and evoked ‘strong emotions’, and that contrary views were not confined to ‘crude bigots only’. We must do the same. Our task is to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. In this our sole duty lies to the Constitution: but those we engage with most deeply in explaining what that duty entails is the nation, whose understanding of and commitment to constitutional values is essential if the larger project of securing justice and equality under law for all is to succeed.