Page:Minister of Home Affairs v Fourie.djvu/12



Rh This did not, however, constitute a complete obstacle to granting them some portion of the relief they sought. The Marriage Act permits the Minister to approve variant marriage formulae for ministers of religion and others holding a ‘responsible position’ within religious denominations. Cameron JA noted that there are currently many religious societies that approve same-sex marriages. Even without amendment to the statute, the Minister is now at liberty to approve religious formulae that encompass same-sex marriages.

Cameron JA stated that it is important to emphasise that neither the Court’s decision, nor the ministerial grant of such a formula, in any way impinges on religious freedom. The extension of the common law definition of marriage does not compel any religious denomination or minister of religion to approve or perform same-sex marriages.

Turning to the appropriate remedy, he stated that once the court concludes that the Bill of Rights requires the development of the common law, it is not engaging in a legislative process. Nor in fulfilling that function is the court intruding on the legislative domain. In his view, successful litigants should be awarded relief; the order of the SCA developing the common law trenched on no statutory provision, and deference to Parliament did not require that the order be suspended; and the applicants should be awarded the benefit of an order regarding the common law of marriage that would take effect immediately. Cameron JA indicated that when the Minister approved appropriate religious formulae, the development of the common law would Rh