Page:Minister of Home Affairs v Fourie.djvu/11



Rh obligations. It offers a social and legal shrine for love and commitment and for a future shared with another human being to the exclusion of all others.

Legislative developments, he continued, have ameliorated but not eliminated the disadvantages same-sex couples suffer. More deeply, the exclusionary definition of marriage injures gays and lesbians because it implies a judgment on them. It suggests not only that their relationships and commitments and loving bonds are inferior, but that they themselves can never be fully part of the community of moral equals that the Constitution promises to create for all. The applicants’ wish was not to deprive others of any rights. It was to gain access for themselves, without limiting that enjoyed by others.

The majority judgment went on to state that the Marriage Act prescribes a verbal formula that must be uttered if the legal consequences of the lawful marriage are to follow. The legislature prescribed this formula, and its words cannot be substituted by ‘updating’ interpretation. If the Court, and not Parliament, is to make a constitutionally necessary change to such a formula, that must be done not by interpretation but by the constitutional remedy of ‘reading-in’. The applicants’ legal advisors, however, had overlooked the question of the Marriage Act.

Rh