| Minister of Home Affairs v Fourie | |
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| Court | Constitutional Court of South Africa |
| Full case name | Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, amici curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others |
| Date decided | 1 December 2005 |
| Citation(s) | [2005] ZACC 19, 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC) |
| Judges sitting | Chief Justice Langa, Deputy Chief Justice Moseneke, Justices Mokgoro, Ngcobo, O'Regan, Sachs, Skweyiya, van der Westhuizen, Yacoob |
| Decision by | Justice Sachs |
| Case history | |
| Prior action(s) |
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| Case opinions | |
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The common-law definition of marriage and section 30(1) of the Marriage Act are inconsistent with the Constitution, and therefore invalid, to the extent that they do not allow to same-sex couples the status and benefits of marriage allowed to opposite-sex couples. (Unanimous.) The declaration of invalidity is suspended for twelve months to allow Parliament to correct the defects. (8:1, O'Regan dissenting.) |
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| Keywords | |
| LGBT rights, same-sex marriage | |
Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others is a landmark decision of the Constitutional Court of South Africa in which the court ruled that same-sex couples have a right to marry. The judgment, authored by Justice Albie Sachs and delivered on 1 December 2005, gave Parliament one year to pass the necessary legislation. As a result the Civil Union Act came into force on 30 November 2006, making South Africa the fifth country in the world to recognise same-sex marriage.
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The case concerned a challenge to the constitutionality of the common-law definition of marriage as "a union of one man with one woman, to the exclusion, while it lasts, of all others"[1], as well as the wording of the marriage formula in the Marriage Act: "lawful wedded wife/husband."[2]
The nine judges hearing the case agreed unanimously that same-sex couples were entitled to marry, but they disagreed as to the remedy. The majority held that the legislature had one year to rewrite the Act in conformity with its decision; otherwise the ruling would alter the statute. Justice Kate O'Regan, the lone dissenter in part, thought the statute should be altered immediately.
The court's finding was based on section 9 of the Constitution of South Africa, particularly on the right to equal protection and benefit of the law in section 9(1) and the explicit prohibition on discrimination, including on the basis of sexual orientation, in section 9(3). The infringement by the Act of the dignity and equality of homosexuals was found to unjustifiable insofar as it prevented same-sex couples from enjoying the same status, rights and duties as heterosexual marriages.
The court noted that South Africa has a multitude of family formations that are evolving rapidly as society develops, so that it is inappropriate to entrench any particular form as the only socially and legally acceptable one. There is an imperative constitutional need to acknowledge the long history in South Africa and abroad of marginalisation and persecution of gays and lesbians, although a number of breakthroughs have been made in particular areas. The court also found that there is no comprehensive legal regulation of the family law rights of gays and lesbians, and that the Constitution represents a radical rupture with a past based on intolerance and exclusion, and the movement forward to the acceptance of the need to develop a society based on equality and respect by all for all. The Court pointed out that what was at issue was the need to affirm the character of the society as one based on tolerance and mutual respect.
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