Page:Fourie v Minister of Home Affairs (SCA).djvu/27

Rh statute, the Minister is now at liberty to approve religious formulae that encompass same-sex marriages.

It is important to emphasise that neither our decision, nor the ministerial grant of such a formula, in any way impinges on religious freedom. The extension of the common law definition of marriage does not compel any religious denomination or minister of religion to approve or perform same-sex marriages. The Marriage Act specifically provides that: ‘Nothing in this Act contained shall be construed so as to compel a marriage officer who is a minister of religion or a person holding a responsible position in a religious denomination or organisation to solemnize a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of his religious denomination or organisation’ (s 31).

When the Minister approves appropriate religious formulae (though subject to the possibility of further appeal proceedings), the development of the common law in this appeal will take practical effect. Religious orders for whose use such formulae are approved will at their option be able to perform gay and lesbian marriages. But gay and lesbian couples seeking to have a purely secular marriage will have to await the outcome of proceedings which, we were informed from the Bar, were launched in the Johannesburg High Court in July 2004, designed to secure comprehensive relief by