Page:Minister of Home Affairs v Fourie.djvu/28

 Rh established by marriage. Marriage law appropriately confined itself to marriage, it was contended, and not to all forms of family relationship.

The initial proposition of the state's argument is undoubtedly correct inasmuch as the Bill of Rights does not expressly include a right to marry. It does not follow, however, that the Constitution does nothing to protect that right, and with it, the concomitant right to be treated equally and with dignity in the exercise of that right. Explaining why the right to marry had not been expressly included in the text of the Constitution as produced by the Constitutional Assembly, this Court in the First Certification case pointed out that families are constituted, function and are dissolved in such a variety of ways, and the possible outcomes of constitutionalising family rights are so uncertain, that Constitution-makers appear frequently to prefer not to regard the right to marry or to pursue family life as a fundamental right that is appropriate for definition in constitutionalised terms. This avoids questions that relate to the history, culture and special circumstances of each society. At the same time, the provisions of the constitutional text would clearly prohibit any arbitrary state interference with the right to marry or to establish and raise a family. The text enshrined the values of human dignity, equality and freedom. However these words might come to be interpreted in the future, the judgment said, it was evident that laws

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