Page:Minister of Home Affairs v Fourie.djvu/91

 Rh concludes, will be regarded as the couple's personal choice, taking account of the couple's religion, culture and sexual preference.

There are accordingly two firm proposals for legislative action that would appear to be ripe for consideration by Parliament. The simple textual change pleaded for by the Equality Project and the comprehensive legislative project being finalised by the SALRC, do not, however, necessarily exhaust the legislative paths which could be followed to correct the defect. In principle there is no reason why other statutory means should not be found. Given the great public significance of the matter, the deep sensitivities involved and the importance of establishing a firmly-anchored foundation for the achievement of equality in this area, it is appropriate that the legislature be given an opportunity to map out what it considers to be the best way forward. The one unshakeable criterion is that the present exclusion of same-sex couples from enjoying the status and entitlements coupled with the responsibilities that are accorded to heterosexual couples by the common law and the Marriage Act, is constitutionally unsustainable. The defect must be remedied so as to ensure that same-sex couples are not subjected to marginalisation or exclusion by the law, either directly or indirectly.

It would not be appropriate for this Court to attempt at this stage to pronounce on the constitutionality of any particular legislative route that Parliament might choose to follow. At the same time I believe it would be helpful to Parliament to point to

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