Page:Minister of Home Affairs v Fourie.djvu/76

 Rh Project case at the same hearing. The challenges to the common law definition and to the Marriage Act now fall to be considered together and in a comprehensive rather than piecemeal way. This enables the Court to develop a less attenuated remedy than was available to the SCA. The challenge now mounted by the Equality Project to the Marriage Act means that the question of whether and how to develop the common law need no longer be answered narrowly as an independent and abstract matter separately from how to respond to the defects of the Marriage Act.

It is clear that just as the Marriage Act denies equal protection and subjects same-sex couples to unfair discrimination by excluding them from its ambit, so and to the same extent does the common law definition of marriage fall short of constitutional requirements. It is necessary, therefore, to make a declaration to the effect that the common law definition of marriage is inconsistent with the Constitution and invalid to the extent that it fails to provide to same-sex couples the status and benefits coupled with responsibilities which it accords to heterosexual couples. The question then arises whether, having made such declaration, the Court itself should develop the common law so as to remedy the consequences of the common law’s under-inclusive character.

The state submitted categorically that the Court did not have the power itself to cure any substantial and non-incremental defect in the common law definition, arguing that only the legislature had the competence to do so. Given the approach I have adopted, it is unnecessary to decide whether this Court has the power to develop Rh