Page:Fourie v Minister of Home Affairs (SCA).djvu/90

Rh With the exception of the rule in Frankel's case no problems will be encountered in applying the rules governing the relations between husbands and wives to partners in a same-sex union. I do not believe that the impossibility of applying the rule in Frankel's case to same-sex unions would give rise to insoluble problems. The existence of this problem would not constitute a reason for refusing to extend the definition in the way we have been asked to do.

Although counsel for the respondent did not contend that an inability on the part of parties to a same-sex union to procreate with each other was a basis for refusing to grant the extension of the definition sought, he did say, as I indicated earlier, that procreation is one of the characteristics going together to make up marriage. In one of the minority judgments in the Massachusetts decision to which I referred above, Cordy J, with whom Spina and Sosman JJ concurred, said: ‘The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to