Page:Fourie v Minister of Home Affairs (SCA).djvu/77

Rh humanity. If you take that purpose away, we have something else; the institution has changed.’

Counsel for the respondents contended further that the essence of marriage in our law is a combination of factors: the characteristics going together to make up marriage, so he contended, were procreation, the consortium omnis vitae and what counsel for the Attorney General of Canada in the Halpern case in the divisional court called ‘the complementarity of the two human sexes’, ‘our femaleness and our maleness’.

Counsel pointed out further that, with the exception of two states of the United States of America (Massachusetts and Washington ), three provinces and a territory in Canada (Ontario, Quebec, British Columbia and the Yukon ) and the Netherlands and Belgium, no jurisdiction of which he was aware has extended the definition of marriage to cover same-sex unions, although some countries recognise what may be called a