Page:Minister of Home Affairs v Fourie.djvu/71

 Rh “There is no interest on the other side that enters the balancing process [for justification]. It is true … that the protection of family and family life in conventional spousal relationships is an important governmental objective, but the extent to which this could be done would in no way be limited or affected if same-sex life partners were appropriately included under the protection of [the section].” The same considerations would apply in relation to enabling same-sex couples to enjoy the status and benefits coupled with responsibilities that marriage law affords to heterosexual couples. Granting access to same-sex couples would in no way attenuate the capacity of heterosexual couples to marry in the form they wished and according to the tenets of their religion.

The second proposition is based on the assertion derived from particular religious beliefs that permitting same-sex couples into the institution of marriage would devalue that institution. Whatever its origin, objectively speaking this argument is in fact profoundly demeaning to same-sex couples, and inconsistent with the constitutional requirement that everyone be treated with equal concern and respect.

However strongly and sincerely-held the beliefs underlying the second proposition might be, these beliefs cannot through the medium of state-law be imposed upon the whole of society and in a way that denies the fundamental rights of those negatively affected. The express or implied assertion that bringing same-sex couples under the umbrella of marriage law would taint those already within its

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