Page:Fourie v Minister of Home Affairs (SCA).djvu/76

Rh Canada in a matter heard in November 2001 in the Ontario Superior Court of Justice, Divisional Court, in which the divisional court declared the common law definition of marriage recognised in Canada (which is the same as ours) to be constitutionally invalid and inoperative but suspended the effect of the declaration for 24 months to permit the Canadian Parliament to act. (On appeal to the Ontario Court of Appeal, the Court, in a judgment delivered on 10 June 2003, upheld the declaration of invalidity but set aside the suspension and ordered the declaration to have immediate effect. )

The submission incorporated into counsel for the respondents' argument before this Court reads as follows: ‘This case is about our humanity … There are different aspects, but at its core is our femaleness and maleness. The issue before this court is a legal one. It is whether government action, embodied in common law, and statutes, meets the charter rights that the applicants possess. … It is a unique institution, and the court has to decide whether to change marriage forever. … The purpose of marriage has nothing to do with excluding the applicants. That is an effect, but the purpose of marriage, outside the law, at its roots, was to define an institution that would bring together the two core aspects of our humanity; our maleness and our femaleness, because at its essence this is the basis for