Page:Minister of Home Affairs v Fourie.djvu/51

 Rh Constitution, to the extent that the law makes no provision for them to achieve the dignity, status, benefits and responsibilities available to heterosexual couples through marriage. The question that then has been posed is whether the traditional law of marriage is itself constitutionally defective, or whether the solution must necessarily be found outside of it.

Marriage and recognition of same-sex unions

I will now deal with the contention that respect for the traditional institution of marriage requires that any recognition of same-sex unions must be accomplished outside of the law of marriage. The applicants submitted that as a matter of simple logic flowing from the above analysis, the Marriage Act is inconsistent with the Constitution and must be declared to be invalid to the extent that it makes no provision for same-sex couples to enjoy the status, entitlements and responsibilities which it accords to heterosexual couples. The state and amici, however, argued that the fault in not furnishing same-sex couples with the possibility of regularising and giving legal effect to their unions, lay outside the Marriage Act itself. Instead, they contended, it stemmed from the failure of the law to provide an appropriate remedial mechanism that was alternative and supplementary to the Marriage Act.

There is an immediate answer to this proposition. A law that creates institutions which enable heterosexual couples to declare their public commitment to each other and achieve the status, entitlements and responsibilities that flow from marriage, but does not provide any mechanism for same-sex couples to achieve the Rh