Page:Minister of Home Affairs v Fourie.djvu/106

 Rh denying successful litigants immediate relief, in order to give Parliament an opportunity to enact legislation to do both.

In my view, it is not. It is true that there is a choice for the legislature to make, but on the reasoning of the majority judgment, there is not a wide range of options. If as Sachs J correctly concludes, it is not appropriate to deny gays and lesbians the right to the same status as heterosexual couples, the consequence is that, whatever the legislative choice, it is a narrow one which will affect either directly or indirectly all marriages. The choice as to how regulate to these relationships will always lie with Parliament and will be unaffected by any relief we might grant in this case.

In my view, this Court should develop the common-law rule as suggested by the majority in the Supreme Court of Appeal, and at the same time read in words to section 30 of the Act that would with immediate effect permit gays and lesbians to be married by civil marriage officers (and such religious marriage officers as consider such marriages not to fall outside the tenets of their religion). Such an order would mean simply that there would be gay and lesbian married couples at common law which marriages would have to be regulated by any new marital regime the legislature chooses to adopt. I cannot see that there would be any greater uncertainty or instability relating to the status of gay and lesbian couples than in relation to heterosexual couples. The fact that Parliament faces choices does not, in this case, seem to me to be sufficient for this Court to refuse to develop the common law and, in Rh