Page:Minister of Home Affairs v Fourie.djvu/54

 Rh The Marriage Alliance, with the support of Cardinal Napier, contended that an essential, constitutive and definitional characteristic of marriage is its procreative potential. The affidavit by Cardinal Napier asserts that marriage institutionalises and symbolises, as it has done across millennia and societies, the inherently procreative relationship between a man and a woman, and it should be protected as such. Lacking such procreative potential same-sex unions could never be regarded as marriages, whatever other form of legal recognition could be given to them.

This very argument was considered in Home Affairs. The Court held in that matter that however persuasive procreative potential might be in the context of a particular religious world-view, from a legal and constitutional point of view, it is not a defining characteristic of conjugal relationships. To hold otherwise would be deeply demeaning to couples (whether married or not) who, for whatever reason, are incapable of procreating when they commence such relationship or become so at any time thereafter. It is likewise demeaning to couples who commence such a relationship at an age when they no longer have the desire for sexual relations or the capacity to conceive. It is demeaning to adoptive parents to suggest that their family is any less a family and any less entitled to respect and concern than a family with procreated children. It is even demeaning of a couple who voluntarily decide not to have children or sexual relations with one another; this being a decision entirely within their protected sphere of freedom and privacy.

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