Page:Minister of Home Affairs v Fourie.djvu/109

 Rh should not come to the relief of successful litigants, simply because an Act of Parliament conferring the right to marry on gays and lesbians might be thought to carry greater democratic legitimacy than an order of this Court. The power and duty to protect constitutional rights is conferred upon the courts and courts should not shrink from that duty. The legitimacy of an order made by the Court does not flow from the status of the institution itself, but from the fact that it gives effect to the provisions of our Constitution. Time and again, there will be those in our broader community who do not wish to see constitutional rights protected, but that can never be a reason for a court not to protect those rights.

There is one further comment I wish to add. It does not seem to me that an order developing the common law, as ordered by the majority in the Supreme Court of Appeal, coupled with an order reading in the words “or spouse” to the relevant provisions of the Marriage Act would undermine the institution of marriage at all. This Court has noted on several occasions the important role that institution plays in our society. Permitting those who have been excluded from marrying to marry can only foster a society based on respect for human dignity and human difference. Nor will it undermine the special role of marriage as recognised by different religions. Such marriages draw their strength and character from religious beliefs and practices. The fact that gay and lesbian couples are permitted to enter civil marriages should not undermine the strength or meaning of those beliefs.

Rh