Page:Minister of Home Affairs v Fourie.djvu/4



Rh legal mechanism in terms of which Ms Fourie and Ms Bonthuys and other same-sex couples could marry.

In the pre-democratic era same-sex unions were not only denied any form of legal protection, they were regarded as immoral and their consummation by men could attract imprisonment. Since the interim Constitution came into force in 1994, however, the Bill of Rights has dramatically altered the situation. Section 9(1) of the Constitution now reads: “Everyone is equal before the law and has the right to equal protection and benefit of the law.” Section 9(3) of the Constitution expressly prohibits unfair discrimination on the grounds of sexual orientation. It reads: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” (My emphasis.)

The matter before us accordingly raises the question: does the fact that no provision is made for the applicants, and all those in like situation, to marry each other, amount to denial of equal protection of the law and unfair discrimination by the

Rh