Minister of Home Affairs v Fourie

Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others
Court	Constitutional Court of South Africa
Full case name	The Minister of Home Affairs and the Director-General of Home Affairs versus Marié Adriaana Fourie and Cecelia Johanna Bonthuys; the Lesbian and Gay Equality Project and Eighteen Others versus the Minister of Home Affairs, the Director-General of Home Affairs and the Minister of Justice and Constitutional Development
Date decided	1 December 2005
Citation(s)	[2005] ZACC 19, 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC)
Judge(s) sitting	Chief Justice Langa, Deputy Chief Justice Moseneke, Justices Mokgoro, Ngcobo, O'Regan, Sachs, Skweyiya, van der Westhuizen, Yacoob
Case history
Prior action(s)	[2002] ZAGPHC 1, unreported (18 October 2002), Pretoria High Court; [2003] ZACC 11, 2003 (5) SA 301 (CC), 2003 (10) BCLR 1092 (CC) (31 July 2003), Constitutional Court (application for direct access denied); [2004] ZASCA 132, 2005 (3) SA 429 (SCA), 2005 (3) BCLR 241 (SCA) (30 November 2004), Supreme Court of Appeal
Case opinions
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 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 J dissenting.)
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 (commonly referred to as Minister of Home Affairs v Fourie)^[1] is a decision of the Constitutional Court of South Africa declaring a constitutional right to same-sex marriage. This made South Africa the fifth nation in the world to recognize such a right, after the Netherlands, Belgium, Spain, and Canada. The case was heard on May 17, 2005, with judgment handed down on December 1. The majority judgment was authored by Justice Albie Sachs.

Facts

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"^[2], as well as the wording of the marriage formula in the Marriage Act: "lawful wedded wife/husband."^[3]

Judgment

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.

See also

• Same-sex marriage in South Africa
• LGBT rights in South Africa
• National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others (1998), another case decided by the Constitutional Court of South Africa which decriminalized homosexual acts.

References

Cases

• Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others [2005] ZACC 19, 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC)

Statutes

• Marriage Act 25 of 1961.

Notes

1. ^ 2006 (1) SA 524 (CC).
2. ^ Mashia Ebrahim v Mahomed Essop 1905 TS 59
3. ^ s 30(1).

External links

• Text of the judgment at SAFLII
• Works related to Minister of Home Affairs and Another v Fourie and Another at Wikisource