The appellants moreover do not seek to limit procreative heterosexual marriage in any way. They wish to be admitted to its advantages,
notwithstanding the same-sex nature of their relationship. Their wish is not to deprive others of any rights. It is to gain access
for themselves without limiting that enjoyed by others. Denying them this, to quote Marshall CJ in the Massachusetts Supreme Court
of Judicature, ‘works a deep and scarring hardship on a very real segment of the community for no rational reason.’ Marshall CJ elaborated thus:
‘Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished.
They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the
marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or
dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues
the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces
the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage’s solemn obligations
of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in
the human spirit.’ (para 57)
It is for this reason that the question of extending marriage to same-sex couples involves such intense and pure questions of principle.
As Sachs J has observed in a different setting, ‘because neither power nor specific resource allocation are at issue, sexual
orientation becomes a moral focus in our constitutional order’. The focus in this case falls on the intrinsic nature of marriage, and the question is whether any aspect of same-sex relationships
justifies excluding gays and lesbians from it. What the Constitution asks in such a case is that we look beyond the unavoidable specificities
of our condition – such as race, gender and sexual orientation – and consider our intrinsic human capacities and what
they render possible for all of us. In this case, the question is whether the capacity for commitment, and the ability to love and
nurture and honour and sustain, transcends the incidental fact of sexual orientation. The answer suggested by the Constitution itself
and by ten years of development under it is Yes.
The remaining justification sought to be advanced – impliedly if not expressly – invokes the acknowledged fact that most
South Africans still think of marriage as a heterosexual institution, and that many may view its extension to gays and lesbians with
apprehension and disfavour. Six years ago, the Constitutional Court acknowledged that revoking the criminal prohibitions on private
consensual homosexual acts touched ‘deep convictions’ and evoked ‘strong emotions’, and that contrary views
were not confined to ‘crude bigots only’. We must do the same. Our task is to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights.
In this our sole duty lies to the Constitution: but those we engage with most deeply in explaining what that duty entails is the
nation, whose understanding of and commitment to constitutional values is essential if the larger project of securing justice and
equality under law for all is to succeed.
In interpreting and applying the Constitution we therefore move with care and respect, and with appreciation that a diverse and plural
society is diverse and plural precisely because not everyone agrees on what the Constitution entails. Respect for difference requires
respect also for divergent views about constitutional values and outcomes.
It is also necessary to be mindful, as the Constitutional Court reminds us, ‘of the fact that the major engine for law reform
should be the Legislature and not the Judiciary’. In the same breath in which it issued this cautionary, however, the Court drew attention to the imperative need for the common law
to be consonant with ‘a completely new and different set of legal norms’. It therefore urged that courts ‘remain
vigilant’ and not ‘hesitate to ensure that the common law is developed to reflect the spirit, purport and objects of
the Bill of Rights’.
In moving forward we also bear in mind that the meaning of our constitutional promises and guarantees did not transpire instantaneously.
Establishing their import involves a process of evolving insight and application. Developing the common law involves a simultaneously creative and declaratory function in which the court puts the final touch on
a process of incremental legal development that the Constitution has already ordained. This requires a deepening understanding of
ourselves and our commitment to each other as South Africans across the lines of race, gender, religion and sexual orientation. As
Ngcobo J has stated:
‘Our Constitution contemplates that there will be a coherent system of law built on the foundations of the Bill of Rights, in which
common law and indigenous law should be developed and legislation should be interpreted so as to be consistent with the Bill of Rights
and with our obligations under international law. In this sense the Constitution demands a change in the legal norms and the values
of our society.’
This process also requires faith in the capacity of all to adapt and to accept new entrants to the moral parity and equal dignity
of constitutionalism. Judges are thus entitled to put faith in the sound choices the founding negotiators made on behalf of all South
Africans in writing the Constitution. And they are entitled also to trust that South Africans are prepared to accept the evolving
implications that those choices entail.
The task of applying the values in the Bill of Rights to the common law thus requires us to put faith in both the values themselves
and in the people whose duly elected representatives created a visionary and inclusive constitutional structure that offered acceptance
and justice across diversity to all. The South African public and their elected representatives have for the greater part accepted
the sometimes far-reaching decisions taken in regard to sexual orientation and other constitutional rights over the past ten years.
It is not presumptuous to believe that they will accept also the further incremental development of the common law that the Constitution
requires in this case.
Relief the appellants seek: the Marriage Act 25 of 1961
In their founding affidavit the appellants ask the Court to develop the common law to recognise same-sex marriages. Their notice of
motion seeks to cast this relief by way of a declarator that their (proposed) marriage be recognised as a valid marriage in terms
of the Marriage Act 25 of 1961, and that the Minister and Director-General of Home Affairs be directed to register their marriage
in terms of the Marriage Act and the Identification Act 68 of 1997. In the High Court, Roux J concluded that the provisions of the Marriage Act were ‘peremptory’ and that they constituted
an obstacle to granting the appellants any relief. This is not correct.
The Marriage Act contains no definition of marriage. It was enacted on the assumption – unquestioned at the time – that
the common law definition of marriage applied only to opposite-sex marriages. That definition underlies the statute. This Court has
now developed it to encompass same-sex marriages. The impediment the statute presents to the broader relief the appellants seek is
only partial. This lies in the fact that s 30(1) prescribes a default – but not exclusive – marriage formula. That formula
must be used by (a) marriage officers who are not ministers of religion or persons holding a ‘responsible position’ in
a religious denomination or organisation; and (b) marriage officers who are ministers of religion or who do hold such a position,
but whose marriage formulae have not received ministerial approval. The statute requires that such marriage officers ‘shall put’ the default formula to the couple, and it requires each
to answer the question whether they accept the other ‘as your lawful wife (or husband)’. The statute empowers the Minister
however to approve religious formulae that differ from the default formula.
Farlam JA suggests that we can change even the default formula by a process of innovative and ‘updating’ statutory interpretation
by reading ‘wife (or husband)’ in this provision as ‘spouse’. I cannot agree. There are two principal reasons.
The first is that I think this would go radically further than the process of statutory interpretation can appropriately countenance.
The second is that in my view the particular words, because of their nature and the role the statute assigns to them, are not susceptible
to the suggested interpretative process.
First, as Ackermann J explained in the Home Affairs case, there is ‘a clear distinction’ between interpreting legislation in conformity with the Constitution and its values, and granting the constitutional remedies of reading in or severance. The two processes are ‘fundamentally different’:
‘The first process, being an interpretative one, is limited to what the text is reasonably capable of meaning. The latter can only
take place after the statutory provision in question, notwithstanding the application of all legitimate interpretative aids, is found
to be constitutionally invalid.’
That it is not always easy to determine ‘what the text is reasonably capable of meaning’ emerges from Daniels v Campbell. In a split decision, the Constitutional Court held that the word ‘spouse’ in the Intestate Succession Act 81 of 1987
can be read to include the surviving partner to a monogamous Muslim marriage. The majority came to this conclusion after distinguishing
the position of same-sex partners, who, that Court had previously held, could not be read as being included in statutory references to ‘spouse’. The majority held, per Sachs J, that central
to the Court’s previous decisions to this effect ‘was a legal finding that it would place an unacceptable degree of strain
on the word “spouse” to include within its ambit parties to a same-sex life partnership’. The majority also concluded, per Ngcobo J, that the previous decisions ‘must be understood to hold that the word “spouse”
cannot be construed to include persons who are not married.’ Moseneke J agreed with the result but considered that the provision should be declared unconstitutionally narrow and the remedial
process of ‘reading in’ adopted.
The majority in Daniels assigned a broad meaning to a word whose purport was not certain. It applied the constitutionally interpretative approach. This involved
attributing a wide meaning to a word, without changing the word. The approach suggested by Farlam JA goes radically further. It does
not assign a broad meaning to a contested word or phrase, but substitutes a phrase with an entirely different word. In the circumstances
of this case I do not consider that this is permissible. Radically innovative statutory interpretations of this kind were devised,
as the authority Farlam JA quotes shows, for jurisdictions which do not, or at the time did not, have the ample remedies of constitutionalism.
Under our Constitution, the proper interpretative approach is plain. If statutory wording cannot reasonably bear the meaning that constitutional validity requires, then it must be declared invalid and
the ‘reading in’ remedy adopted.
Second. Most statutory provisions create norms that guide state officials and others who exercise power. When their interpretation
is at issue, the question is how broadly or narrowly they apply. Section 30(1) does not create a norm for the application of state
power. It describes an action. It prescribes a verbal formula that must be uttered if the legal consequences of lawful marriage are
to follow. What it requires is action that must be performed if the parties’ personal status is to be changed in relation to
each other and the world. The action consists in the utterance of specified words. But it is action no less. The statutory formula
in other words encodes a ‘performative utterance’ which the statute requires as a precondition to the happening of the marriage and its legal consequences.
In my view where the legislature prescribes a formula of this kind its words can not be substituted by ‘updating’ interpretation.
If the Court, and not the legislature, is to make a constitutionally necessary change to such a formula, that must be done not by
interpretation but by the constitutional remedy of ‘reading in’. That remedy is appropriate because it changes in a permissible
manner the nature of the action the statute requires, without purporting merely to interpret its words.
The appellants’ legal advisors apparently overlooked the question of the marriage formula entirely. As Moseneke J pointed out
in refusing leave to appeal directly to the Constitutional Court, their papers do not seek ‘a declaration that any of the provisions
of the legislation dealing with the solemnising or recording of marriages is inconsistent with the Constitution’.
This does not however in my view constitute an obstacle to granting the appellants some portion of the relief they seek, as Roux J
considered. As Farlam JA points out (para 91), the Act permits the Minister to approve variant marriage formulae for ministers of
religion and others holding a ‘responsible position’ within religious denominations. There are many religious societies
that currently approve gay and lesbian marriage, including places of worship specifically dedicated to gay and lesbian congregations.
Even without amendment to the statute, the Minister is now at liberty to approve religious formulae that encompass same-sex marriages.
It is important to emphasise that neither our decision, nor the ministerial grant of such a formula, in any way impinges on religious
freedom. The extension of the common law definition of marriage does not compel any religious denomination or minister of religion
to approve or perform same-sex marriages. The Marriage Act specifically provides that:
‘Nothing in this Act contained shall be construed so as to compel a marriage officer who is a minister of religion or a person holding
a responsible position in a religious denomination or organisation to solemnize a marriage which would not conform to the rites,
formularies, tenets, doctrines or discipline of his religious denomination or organisation’ (s 31).
When the Minister approves appropriate religious formulae (though subject to the possibility of further appeal proceedings), the development
of the common law in this appeal will take practical effect. Religious orders for whose use such formulae are approved will at their
option be able to perform gay and lesbian marriages. But gay and lesbian couples seeking to have a purely secular marriage will have
to await the outcome of proceedings which, we were informed from the Bar, were launched in the Johannesburg High Court in July 2004,
designed to secure comprehensive relief by challenging the provisions of the Marriage Act and other statutes.
Should our order be suspended?
Having concluded that the common law should be developed, Farlam JA proposes to suspend the order for two years. I cannot agree. The
suggested suspension is in my respectful view neither appropriate nor in keeping with principle, the justice of this case, or the
role the Constitution assigns to courts in developing the common law. It is in my view also not logical to hold that developing the
common law does not stray into the legislative domain, as Farlam JA rightly holds, but then to suspend the order as though it did.
First the Constitution. As suggested earlier, development of the common law entails a simultaneously creative and declaratory function
in which the court perfects a process of incremental legal development that the Constitution has already ordained. Once the court
concludes that the Bill of Rights requires that the common law be developed, it is not engaging in a legislative process. Nor in
fulfilling that function does the court intrude on the legislative domain.
It is precisely this role that the Bill of Rights envisages must be fulfilled, and which it entrusts to the judiciary. As set out
earlier (para 3 above), s 8(3) of provides that in order to give effect to a right in the Bill of Rights a court must – subject
to limitation – ‘apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right’. Section 8(3) envisages just the situation this appeal presents – that legislation to give effect to a fundamental right
is absent. In this circumstance, the Constitution deliberately assigns an imperative role to the court. Subject to limitation, it
is obliged to develop the common law appropriately. And this role is particularly suited to the judiciary, since the common law and
the need for its incremental development are matters with which lawyers and judges are concerned daily.