Page:Minister of Home Affairs v Fourie.djvu/78

 Rh that formal registration of same-sex unions would automatically extend the common law and statutory legal consequences to same-sex couples that flow to heterosexual couples from marriage.

The Equality Project in fact urged us to adopt the simple corrective statutory strategy of reading in the words “or spouse” after the reference to husband and wife in section 30(1) of the Marriage Act. The state and the amici argued forcibly against this contention. In their view, to accept it would not merely modify a well-established institution to bring it into line with constitutional values. It would completely restructure and possibly even destroy it as an institution. Their argument was threefold: first, that time should be given for the public to be involved in an issue of such great public interest and importance; second, that it was neither competent nor appropriate for the Court itself to restructure the institution of marriage in such a radical way; and third, that only Parliament had the authority to create such a radical remedy, so that if the Court should declare the Marriage Act to be invalid because of its under-inclusive nature, the declaration of invalidity should be suspended to enable Parliament to correct the defect.

I start with the argument that the Court should not undertake what was said to be a far-reaching and radical change without the general public first having had an opportunity to have its say. Then, I deal with the question of whether in the circumstances it would be just and equitable for the Court to suspend any declaration Rh