Page:Fourie v Minister of Home Affairs (SCA).djvu/86

Rh to consider the main rules comprising that part of the law traditionally regarded as part of the law of marriage or matrimonial relations.

But before doing so it is appropriate to refer to the reason given by the Roman Dutch writers who dealt with the topic for the rule restricting the marriage relationship to heterosexual couples. In his commentary on the Institutes Arnoldus Vinnius says in discussing Justinian's definition of marriage, which is set out in Inst 1.9.1 and which is quoted in para [37] above: ‘of a male and a female.

For the union of two persons of the same sex is to be detested and is condemned by the law of God, the law of nature and the laws of all nations.’ Brouwer, after quoting the definitions of Justinian and Modestinus, says: ‘We say “of a male and a female” in the singular to exclude polygamy: we express both sexes to condemn lechery contrary to nature towards the same sex.’ Similar views were expressed by Hendrik Jan Arntzenius: ‘We say “a man and a woman” which indicates that polygamy and the unspeakable practice of homosexualism are repugnant to the nature of marriage.’