Page:Fourie v Minister of Home Affairs (SCA).djvu/70

Rh way which unjustifiably limits the constitutional rights of partners in a permanent same-sex life partnership.

[56] In the second place there is no rational connection between the exclusion of same-sex life partners from the benefits under s 25(5) and the government interest sought to be achieved thereby, namely the protection of families and the family life of heterosexual spouses. No conceivable way was suggested, nor can I think of any, whereby the appropriate extension of the s 25(5) benefits to same-sex life partners could negatively effect such protection. A similar argument has been roundly rejected by the Canadian Supreme Court, which Court has also stressed, correctly in my view, that concern for the protection of same-sex partnerships in no way implies a disparagement of the traditional institution of marriage.

[57] There is nothing in the scales to counteract such conclusion. I accordingly hold that s 25(5) constitutes unfair discrimination and a serious limitation of the s 9(3) equality right of gays and lesbians who are permanent residents in the Republic and who are in permanent same-sex life partnerships with foreign nationals. I also hold, for the reasons appearing throughout this judgment and culminating in the conclusion reached at the beginning of this paragraph, that s 25(5) simultaneously constitutes a severe limitation of the s 10 right to dignity enjoyed by such gays and lesbians.’ (Footnotes omitted.)

That reasoning clearly applies here. The effect of the common law prohibition of same-sex marriages is clearly unfair because it prevents parties to same-sex permanent relationships, who are as capable as heterosexual spouses of establishing a consortium omnis vitae, of constituting a family and of establishing,