IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO. CCT 60/2004

In the matter between:

MINISTER OF HOME AFFAIRS First Applicant

DIRECTOR-GENERAL HOME AFFAIRSSecond

Applicant

and

MARIE ADRIAANA FOURIE First Respondent

CECILIA JOHANNA BONTHUYS Second Respondent

and

MARRIAGE ALLIANCE OF SOUTH AFRICA Amicus

curiae

THE MARRIAGE ALLIANCE OF SA’s HEADS OF

ARGUMENT

INTRODUCTION

1. In the Supreme Court of Appeal (“SCA”) Cameron JA held that:

“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.”1

1
Fourie and Another v Minister of Home Affairs and Others (2005) 1
 -2-
2. He deals with

the intrinsic

nature of marriage in paragraphs 14 and 19 of the judgment.

In paragraph 14 he states:

“At issue is access to an institution that all agree is vital to

society and central to social life and human relationships.
More than this, marriage and the capacity to get married
remain central to our self-definition as humans. As Madala J
has pointed out, not everyone may choose to get married: but
heterosexual couples have the choice2. The capacity to
choose to get married enhances the liberty, the autonomy and
the dignity of a couple committed for life to each other. It
offers them the option of entering an honourable and
profound estate that is adorned with legal and social
recognition, rewarded with many privileges and secured by
many automatic obligations.3 It offers a social and legal
shrine for love and commitment and for a future shared with
another human being to the exclusion of all others.”

3. In paragraph 19 he states :

“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.”

All SA 273 (SCA), paragraph 19 at 282H-283A

2
Satchwell v President of the Republic of South Africa 20021 (6) SA
1 (CC) para 12
3
Footnotes omitted
 -3-
4. It is submitted

that the SCA

did not have proper regard to the actual intrinsic nature of

marriage. Without expressly acknowledging it, the SCA

adapted, and endorsed, a model of marriage which radically

differs from the traditional, common law model.

We refer to the traditional, common law model as the

“conjugal” or “traditional model”. We refer to the model

described in the SCA's judgment as the “close personal

relationship” or “pure relationship” model.

5. The differences between the models of marriage are

illustrated by the following dicta in two cases:

5.1 “My colleague, Gonthier J. in Miron v Trudel has been at

pains to discuss the fundamental importance of
marriage as a social institution, and I need not repeat
his analysis at length or refer to the authorities he cites.
Suffice it to say that marriage has from time
immemorial been firmly grounded in our legal tradition,
one that is itself a reflection of long-standing
philosophical and religious traditions. But its ultimate
raison d'étre transcends all of these and is firmly
anchored in the biological and social realities that
heterosexual couples have the unique ability to
procreate, that most children are the product of these
 -4-

relationships, and that they are generally cared for and

nurtured by those who live in that relationship. In this
sense, marriage is by nature heterosexual. It would be
possible to legally define marriage to include
homosexual couples, but this would not change the
biological and social realities that underlie the
traditional marriage.”4

5.2 “Civil marriage is at once a deeply personal

commitment to another human being and a highly
public celebration of the ideals of mutuality,
companionship, intimacy, fidelity and family … Because
it fulfils yearnings for security, safe haven, and a
connection that express our common humanity, civil
marriage is an esteemed institution, and the decision
whether a need to marry is among life’s momentous
acts of self-definition”.5

6. There is no evidential basis for the SCA's rejection of the

traditional conjugal model (exemplified in the first quote) and

its approval of the close relationship model (exemplified in the

second qoute). This dramatic change inherent in rejecting the

conjugal model is clearly demonstrated by what Cameron JA

said in the inaugural lecture which he delivered on 27 October

4
La Forest J in Egan v Canada 124 DLR (4th) 609 para 21
5
Goodridge v Department of Public Health, 440 Mass 309, 798 NE2d
941 (2003) para. 25
 -5-
19926. Under

the heading

“The Consequences of Constitutional Protection”, the following

appears:

“Whatever the answers, adequate constitutional protection of

persons discriminated against because of sexual orientation
will entail …

(a) Decriminalization …

(b) Legislative enforcement of non-discrimination …;

(c) Right of free speech association and conduct …;

(d) Permanent domestic partnerships.

More controversially, genuine recognition of non-

discrimination on the ground of sexual orientation would
entail granting some recognition to permanent domestic
partnerships. This need not take the form of extending
heterosexual “marriage” which both by name and tradition
may well be unnecessary and inappropriate. “

The lecture was premised on the basis that the Constitution

would contain specific protection for the rights of persons

based on their sexual orientation. We submit that Cameron JA

6
“Sexual Orientation and the Constitution: A test case for human
rights” (1993) 110 SALJ 450 at 470-471. (This is a revised version of the
lecture)
 -6-
correctly

referred to

marriage as a “heterosexual” institution7. There is simply no

evidence that, since 1992, this institution changed so

dramatically that it was transformed to one based on close

personal relationships.

WHAT IS THE INTRINSIC NATURE OF MARRIAGE?

7. According to LAWSA8:

“Marriage may be defined as the legally recognised voluntary

union for life of one man and one woman to the exclusion of
all others while it lasts. The definitions of marriage given by
some old writers go further, introducing references to the
element of sexual intercourse between man and wife, and to
that of the procreation of children. Whereas sexual
intercourse appears to constitute one of the necessary
purposes or causae finales of marriage in modern law in that
impotence of one spouse existing at the time of the marriage
and unknown to the other spouse renders the marriage
voidable at the instance of the ignorant party, the modern
view is that the procreation of children, although linked to the
essential nature of marriage, is not a necessary purpose of it.

Although marriage is undeniably the most important institution

of family law, it is not only or even primarily a legal institution:

7
As did La Forest J in Egan
8
Volume 16, 1st re-issue, paragraph 12:
 -7-
it is based on
human nature
and is necessary for the maintenance of society of which it
forms an important foundation.” (Footnotes omitted)9

8. Certain realities regarding marriage are uncontroversial. No

credible examiner of marriage seriously disputes them, and no

law respecting marriage should be formulated without due

consideration thereof.

8.1 First and foremost is that marriage is a social

institution10. As such, marriage shares with all other

social institutions certain salient features. Stated

slightly differently, what can be said accurately about all

social institutions can be said accurately of the

institution of marriage. Social institutions are

constituted in large measure by shared public meanings.

It is constituted “by a complex web of social meaning”11.

9
See also Lee and Honore: “Family, Things and Succession”, 2nd Ed., paras
21-27
10
Du Toit and Another v Minister for Welfare and Population
Development and Others 2002 (10) BCLR 1006 (CC), para 19 “The
institutions of marriage and family are important social pillars that
provide for security, support and companionship between members of our
society and play a pivotal role in the rearing of children.”; Satchwell v
President of the RSA and Another 2002 (9) BCLR 986 (CC), para 13
11
Monte Stewart: “Judicial Redefinition of Marriage” 21 Canadian
Journal of Family Law 11 (2004) (hereinafter “Judicial Redefinition”) at 75
 -8-
8.2 The

shared

meanings (especially the core meanings) that constitute

a social institution interact and are inter-dependent.

Each core meaning affects and is dependent on all the

others.

8.3 Social institutions shape and guide individuals’ identity,

perceptions, aspirations and conduct.

“(T)he marriage institution, like all social institutions, is

constituted by a complex web of meanings that supplies
to the people who participate in it what they should aim
for, dictates what is acceptable or effective for them to
do, and teaches how they must relate to other members
of the institution and to those on the outside, in other
words, that profoundly shapes what those who
participate in the institution think of themselves and of
one another, what they believe to be important and
what they strive to achieve.”12

8.4 Inasmuch as societies create and sustain social

institutions, society can change its social institutions.

Because social institutions are constituted by shared

public meanings, they are necessarily changed when

those meanings are changed and/or no longer

12
Judicial Redefinition at 111
 -9-

sufficiently shared.

8.5 Social institutions can be entirely dismantled:

“The secret of understanding the continued existence of

institutional facts is simply that the individuals directly
involved and a sufficient number of members of the
relevant community must continue to recognise and
accept the existence of such facts…. The moment, for
example, that all or most of the members of the society
refuse to acknowledge (the social institution of) property
rights, as in a revolution or other upheaval, property
rights cease to exist in that society.” 13

8.6 To alter a social institution by altering the shared public

meanings that constitute it, (whether by use of the law

or otherwise) is to alter – if not immediately then

certainly soon– the individual identity, perceptions,

aspirations and conduct formed by reference to the old

13
Searle: “The construction of social reality” (1996) at 117. Searle
also uses the example of money: “We can say, for example, in order that
the concept “money” applied to the stuff in my pocket, it has to be the
sort of thing that people think is money … [I]n order that a type of thing
should satisfy the definition, in order that it should fall under the concept
of money, it must believed to be, or used as, or regarded as etc. satisfying
the definition. And what goes for money goes for elections, private
property, wars, voting, promises, marriage, buying and selling, political
offices and so on.”
 - 10 -

institution. The greater the alteration to the institution,

the greater the changes in the individual. Likewise, the

more influential the social institution being changed, the

greater the changes in the individual.

8.7 It bears repeating that these realities regarding social

institutions in general and the social institution of

marriage in particular, are uncontroversial. No law

respecting marriage can be formulated responsibly and

properly without giving these realities their due.

8.8 Although these fundamental realities are

uncontroversial, consensus ends when one enters the

realm of the highly charged and controversial debate

about the redefinition of marriage.

9. The virtually universally shared public and core meaning

constituting the vital social institution of marriage is that the

marriage is the union of a man and a woman.14

14
Apart from the various common law recognitions, see also Halpern
v Canada (Attorney General) 225 DLR (4th) 529 at para 37; Egale Canada
Inc v Canada (Attorney General) 225 DLR (4th) 472 paras 50-56; Cere and
Farrow: “Divorcing Marriage: Unveiling the Dangers in Canada’s New
Social Experiment” (McGill-Queen’s University Press 2004) at 45-48
(hereinafter “Divorcing Marriage”).
 - 11 -
10. This core

meaning has

been, and continues to be, influential in forming individual

identity, perceptions, aspirations and conduct. Thus, the

institution turns a male into a husband and often into a

husband / father. In many important ways, a husband acts

differently towards a wife than a male acts towards a female

and a husband / father acts differently towards his child than a

male acts towards his biological offspring.15 Cere comments

on the two models as follows16:

“Comparative cultural analysis alerts us to the great diversity

of forms taken by the marital institution, but is also shows us
that marriage invariably displays certain features.
Summarizing this historical and cross-cultural evidence, Margo
Wilson and Martin Daly, evolutionary psychologists at
McMaster University, conclude that marriage is an institution
that interacts with the unique social-sexual ecology in human
life. It bridges the male-female divide. It negotiates a stable
partnership of life and property. It seeks to manage the
procreative process and to establish parental obligations to

15
Coolidge: “Same-sex marriage? Baehr v Miike and the Meaning of
Marriage”, South Texas Law Review, Vol. 38:1 (1997) pp1-119 puts
forward three contending models of marriage, namely the traditional
model of marriage: complementarity; the liberal model: choice and the
post modern model of marriage: commitment. His conclusion is that the
traditional model defines marriage in America.
16
Divorcing Marriage pp 11-13
 - 12 -
offspring. It
supports the
birthright of children to be connected to their mothers and
fathers17

Canadian Law and public policy have long recognised this. In

Egan v Canada, Justice La Forest summed up the legal
tradition when he stated that marriage is -

“firmly anchored in the biological and social realities” that

men and women “have the unique ability to procreate, that
most children are the product of these relationships, and that
they are generally cared for and nurtured by those who live
in that relationship”. However, by the time of Egan a revolt
against those realities was already well under way. A new
body of academic and legal opinion was busily draining
marriage of its core conjugal characteristics: permanence,
procreativity and child-centredness. The move to divest
marriage even of its sex-bridging essence was being
prepared. Conjugal marriage would be discharged in favour
of something else, something built on “pure relationships” or
on what scholars sometimes call “close relationship theory”.

The British social theorist Anthony Giddens argues that

contemporary culture is in the midst of a shift from a culture
of marriage to a culture of pure relationships. A pure
relationship is one that has been denuded of any goal or end
beyond the intrinsic, emotional, psychological or sexual

17
Margo Wilson and Martin Daly, “Marital Co-operation and Conflict”
in Evolutionary Psychology, Public Policy and Personal Decision, Charles
Crawford and Katherine Salmon Eds (Mahwah, NJ: Lawrence Erlbaum
Associates, 2004) p203
 - 13 -
satisfaction
that the
relationship brings to the adults involved. Pure relationships,
unlike marriages, are the ever-changing product of private
negotiation. In so far as marriage itself is drawn into this new
culture of intimacy, it is placed on a level playing field with all
other “long-term” sexual partnerships. Severed from its
historic roots in sex difference, permanence, and children, it
becomes nothing other or more than a form of intimacy
between consenting adults. It is made more pliable, open to
constant renegotiation, easily contracted and easily
dissolved.

The close-relationship paradigm has not yet been subjected

to sustained critical evaluation. Our legal establishment,
however, appears very anxious to enthrone it in law. Close-
relationship theory provides the framework for the recent
recommendations of the Law Commission of Canada in its
2001 report: Beyond Conjugality: Recognising and Supporting
Close Personal Adult Relationships. Its influence is also
evident in recent Court judgments on marriage. Consider, for
example, the language of the Halpern appeal:

“Marriage is, without dispute, one of the most significant forms of

personal relationships. … Through the institution of marriage,
individuals can publicly express their love and commitment to each
other. Through this institution, society publicly recognises
expressions of love and commitment between individuals, granting
them respect and legitimacy as a couple. This public recognition
and sanction of marital relationships reflects society’s approbation
of the personal hopes, desires and aspirations that underlie loving,
committed conjugal relationships. This can only enhance an
 - 14 -
individual’s
sense of self-
worth and dignity”.

What is seldom acknowledged is that this paradigm shift from the

conjugal to the close relationship represents a fundamental re-
interpretation of the core social purposes of marriage.”

11. In his comprehensive article “Judicial Redefinition of Marriage”,

Monte Stewart refers to the “deep logic of marriage”18. This

phrase encompasses the complex of purposes and values that

the literature suggests inheres in the social institution of

marriage as experienced in Canadian and American

societies.19 A relevant component of this complex is the

procreation argument. It is a response to two essential

realities of man/woman intercourse: its procreative power and

its passion. The component’s purpose is understood as the

provision of adequate private welfare to children. The phrase

“private welfare” includes not just the provision of physical

needs such as food, clothing and shelter; it encompasses

opportunities such as education, play, work and discipline and

intangibles such as love, respect and security. He concludes

that the fundamental and originated purpose of marriage is to

confine procreative passion to a setting, a social institution

18
Judicial Redefinition, p44-46
19
And, we submit, South Africa.
 - 15 -
that will

ensure, to the

largest practical extent, that passion’s consequences

(children) begin and continue life with adequate private

welfare. In this regard he refers to the dissenting judgment of

Cordy J in Goodridge20

“Paramount among its many important functions, the

institution of marriage has systematically provided for the
regulation of heterosexual behaviour, brought order to the
resulting procreation, and ensured a stable family structure in
which children will be reared, educated and socialised. … (A)n
orderly society requires some mechanism for coping with the
fact that sexual intercourse commonly results in pregnancy
and childbirth. The institution of marriage is that mechanism.
The institution of marriage provides the important legal and
normative link between heterosexual intercourse and
procreation on the one hand, and family responsibilities on
the other. … (A)side from an act of heterosexual intercourse
nine months prior to childbirth, there is no process for
creating a relationship between a man and a woman as the
parents of a particular child. The institution of marriage fills
this void while formally binding the husband/father to his wife
and child, and imposing on him the responsibilities of
fatherhood. The alternative, society without the institution of
marriage, in which heterosexual intercourse, procreation, and
child care are largely disconnected processes, would be
chaotic.”

20
At 381-383:
 - 16 -
12. Katherine

Young21 states

the following:22

“Comparative research on the worldviews of both small-scale

societies and those of world religions, both Western and
Eastern, reveals a pattern: Marriage has universal, nearly
universal and variable features.

Its universal features include the fact that marriage is (a)

supported by authoritiy and incentives; (b) recognizes the
interdependence of men and women; (c) has a public or
communal, dimension; (d) defines eligible partners; (e)
encourages procreation under specific conditions; and (f)
provides mutual support not only between men and women
but also between them and children.

Its nearly universal features are (a) an emphasis on durable

relationships between parents; (b) mutual affection and
companionship; (c) family (or political) alliances and (d)
reciprocity between young and old. Most large-scale
societies have encouraged durable relationships between
biological parents and children at least until the latter reach
maturity. That is because of the long time it takes infants to
mature; cooperation is necessary to ensure their survival.
Most societies have recognised that these are fragile bonds
and therefore preferred arranged marriages (although they
usually encourage affection and companionship as well).
21
Divorcing Marriage, p45-46
22
With minor changes, this section of the chapter is based on her
affidavit in the Halpern case.
 - 17 -
These
universal and
nearly universal features rely on the distinctive (but not
necessary innate) contributions of both sections, allow the
transmission of knowledge from one generation to another,
and create not only “vertical” links between the generations
but also “horizontal” ones between allied families or
communities.

As for the many variable features of marriage these include

endogamy (marrying within a group) or exogamy (marrying
outside it); monogamy or polygamy (and, if the latter,
polygyny or polyandry); marrying up in status or marrying
down; arranged marriage or chosen; dowry (from the bride’s
family) or bride price (goods given or services performed by
the groom); sexual equality or hierarchy; many children or
few; extended family or nuclear; residence with the bride’s
family; with the groom’s, or neither; divorce allowed or
prohibited; and so on. Alternatives to marriage are
celebrated in some societies (as in the case of celibate
monks for instance of shamans) and tolerated in others (such
as single people or gay couples), but only when the larger
society is in no danger of failing to reproduce itself.”

13. We respectfully submit that the common law recognition of

marriage is prior to the State and law. Throughout history, and

across racial, cultural and religious lines it is recognised as an

inherently heterosexual institution, as Cameron JA did in his

inaugural lecture.
 - 18 -
DOES THE
COMMON LAW
DEFINITION OF MARRIAGE DISCRIMINATE AGAINST
HOMOSEXUAL PERSONS?

14. In Halpern v Canada (Attorney-General)23 the respondents

argued that the “unique opposite sex nature of marriage does

not imply that the human dignity of those in other

relationships is diminished”. The “definitional boundaries” of

marriage “do not violate the constitutional rights of the quality

of those whose unions have an essential difference”.

15. Blair R S J held that, if this understanding of marriage forms

the starting point of the constitutional analysis, the argument

that s15(1) of the Canadian Charter of Rights and Freedoms

(“Charter”) is violated is harder to make24:

“Viewed from this standpoint, same-sex couples are not

excluded from the institution because of their sexual
orientation; rather, they are simply ineligible because they fall
outside of the “definitional boundaries of marriage”. They are
incapacitated from entering the institution, not precluded
from doing so on the basis of their personal characteristics.”

16. Later in the judgment he returned to this argument:25

23
215 DRL 223 para 63
24
para 64
25
Para 80, p272
 - 19 -
“Whether
one
approaches ‘marriage’ from the classical perspective based
upon the narrow basis that heterosexual procreation is its
fundamental underpinning and what makes it ‘unique in its
essence, that is, its opposite sex nature’, or whether one
approaches it from a different perspective, is pivotal to the
s.15 analysis, however, if one accepts the former view as the
starting premise, there is little debate, it seems to me. The
institution of marriage is inherently and uniquely
heterosexual in nature. Therefore, same-sex couples are not
excluded from it on the basis of a personal characteristic
giving rise to differential treatment founded upon a
stereotypical difference. Same-sex couples are simply
incapable of marriage, because they cannot procreate
through heterosexual intercourse. Thus it is a distinction
created by the nature of the institution itself which precludes
homosexuals from access to marriage, not a personal
characteristic or stereotypic prejudice. The equality
provisions of s.15 are not violated, and even if they were, the
same analysis would justify the law in preserving the
institution for heterosexual couples and therefore save the
classic definition of ‘marriage’ on a s.1 analysis.”

17. Blair R S J rejected the argument that marriage is inherently

and uniquely heterosexual in nature on the basis that

heterosexual procreation is no longer viewed as the central

characteristic of marriage. He accordingly found that there

was indeed a violation of s.15(1) of the Charter.

 - 20 -
18. We submit, on

the analysis in

the previous section, that marriage, as defined in the common

law, is indeed a heterosexual institution (“has inherently

heterosexual uniqueness”) or, as Cameron JA stated, it is

“heterosexual ‘marriage’”, and that it is “unnecessary and

inappropriate” to extend it to include homosexual persons. If

this is the case, we submit that there is no discrimination

against, or infringement of any rights of, homosexual and

lesbian persons26. They are excluded from the institution, not

because of their sexual orientation, but because the institution

is, by its nature and definition, heterosexual.

19. The common law does not prescribe what marriage is. It

recognises the institution of marriage as understood and given

content by society.

20. The desire for equality is not a hope for the elimination of all

differences.27 There is nothing discriminatory in preserving an

institution which, over centuries and worldwide, has been

regarded as a vital social institution.

26
Our reference to”homosexual persons” includes lesbian persons.
27
National Coalition for Gay and Lesbian Equality v Minister of Justice
and Others 1998 (12) BCLR 1517 (CC) at para 22
 - 21 -

IF THE COMMON LAW DEFINITION DOES DISCRIMINATE

AGAINST HOMOSEXUAL PERSONS, IS THE DISCRIMINATION
UNFAIR?

21. If the Court finds that marriage, as defined in the common

law, is not an inherently heterosexual institution, and that it

constitutes discrimination against homosexual persons, the

discrimination will be due to their sexual orientation. As such

it is presumed to be unfair28.

22. According to the Harksen judgment, the test of unfairness

focuses primarily on the impact of the discrimination on the

complainant and others in his or her situation. On this

analysis homosexual persons are excluded from what is

regarded as a pivotal social institution. The arguments why

any discrimination is justified (“not unfair”) are more

appropriately made under the limitation clause.

THE LIMITATION ANALYSIS

23. It is submitted that any limitation of homosexual persons’

right to marry is reasonable and justifiable in an open and

28
Sections 9(3) read with 9(5)
 - 22 -
democratic

society based

on human dignity, equality and freedom. The nature of the

rights infringed, equality and dignity, are important.

24. The purpose of the limitation is fundamental. It is necessary

to protect an institution which is universally regarded as vitally

important to society.

25. The SCA found that Ms Fourie and Bonthuys did not seek to

limit procreative heterosexual marriage in any way, but

merely wished to be admitted to its advantages29. That is

what they said in their affidavits. It will, however, not be the

effect of the redefinition of marriage.

26. The act of redefinition will radically transform (not all at once

but over time and probably quickly) the old institution of

marriage and make it into a profoundly different institution,

one whose meanings, value and vitality are speculative.

Redefinition also affects already married opposite sex couples.

Redefinition, without an act of their own, removes them from

the institution which they voluntarily entered (man/woman

marriage) into a markedly different one.

29
Para 18.
 - 23 -
27. To the extent

that

institutions are constituted by social meaning, and to the

extent that the law dictates the social meaning of civil

marriage, to redefine marriage as the union of any two

persons is not to pull gay men and lesbians into marriage as

our societies now know it, but to pull married man/woman

couples into what Monte Stewart calls “genderless

marriage”.30

28. Cere31 describes the redefinition as a “paradigm shift”.

According to him:

“We cannot tinker with the fundamentals of an institution like

marriage without expecting significant consequences.

Suppose the rules of chess were changed in order to

standardize the moves of each of the pieces – what we would

be left with would not be chess at all but a curious-looking

game of checkers. Marriage, likewise, is not improved by

becoming all things to all people. Rather, its capacity to carry

its social meaning, and to serve its own distinctive goals, is

cast into doubt. Changing the public meaning of an

institution changes the social reality. It transforms the

30
Judicial Redefinition, p84-85
31
Divorcing Marriage, pp 15,
 - 24 -

understandings, practices and goods supported by that

institution. In this case it alters even the “conjugal self”.”

29. This reality is appreciated by gay and lesbian theorists.

Ladelle McWhorter points out that:

“… (Heterosexuals) are right, for example, that if same-sex

couples get legally married, the institution of marriage will
change, and since marriage is one of the institutions that
support heterosexuality and heterosexual identities,
heterosexuality and heterosexuals will change as well.”32

30. In this regard Lorraine Wolhuter33 says the following:

“It will be argued that, given the degree to which South

African and foreign jurisprudence is informed by heterosexist
ideology, those interested in gay unions must reformulate the
concept of marriage, excise the heterosexist symbolism that
is attached to it, and construct a new understanding of the
institution of marriage that meets the needs of gay couples.”

31 In a recent article, following Canadian jurisprudence

throughout, but framing itself within a South African context,
De Vos, referred to as an authority by the Law Reform

32
Divorcing Marriage, p14
33
“Equality and the concepts of difference: same-sex marriages in
the light of the final Constitution” (1997) 114 SALJ 389
 - 25 -
Commission
(see:
Discussion Paper 104, Domestic Partnerships, December
2003: ISBN: 0-621-34421-4), shows the illiberal direction of
certain main-stream analysis in how he speaks of the need to
“attack” the concept of “family” and “marriage”:

“If everyone has the right to be different and if we must

move away from the idea that heterosexuality forms the
normative basis for policy formulation, then the very
institutions which valorise a certain manifestation of
heterosexuality in our society must be under attack. A prime
candidate for re-invention or reconstruction must surely be
the institutions of "marriage" and the "family', the very
institutions which have been deployed to regulate and
police intimate relations in our society. These institutions
have traditionally been associated with the validation and
valorisation of certain kinds of heterosexual relationships and
have thus contributed to the marginalisation of those whose
sexuality do (sic) not conform to the idealised
heterosexual norm. If we were to engage with the [South
African] Constitutional Court's equality rhetoric around sexual
orientation in a serious manner, it would throw into doubt
the constitutional tenability of the continued use of these
concepts in their present form or perhaps in any form.34

The language of simple “inclusion” into the pre-existing recognized

category of male/female marriage is not a simple inclusion. As De
Vos’ article shows, the goal is the “attack” on marriage and the
family. The legal challenges claim simple inclusion but their reason
for the inclusion is not benign, it is designed to obliterate the pre-
existing institutions as “heteronormative.”

34
Pierre De Vos "Same-Sex Sexual Desire and the Re-Imagining of
the South African Family" South African Journal of Human Rights
Volume 20 Part 2 (2004) 179 at 187
 - 26 -
31. De Vos35 also

states the

following:

“One must, however, acknowledge the strong likelihood of

constitutional challenge to same-sex marriage from same-sex
couples in South Africa in the new future. The best way to
deal with this situation, I believe, is to pursue both short term
and long term strategies regarding marriage. In the short
term, we must acknowledge that marriage, as it is presently
structured, holds many advantages for gay men and lesbians.
… However, over the long-term it will be necessary to
challenge the legally privileged position itself that is afforded
married people by contrast with unmarried people. Long-
and short-term strategies need not be regarded as
antithetical to one another, but rather as stages in a
process.”

32. Professor Robert Wintemute is an influential and vocal

proponent of same-sex marriages. The counsel for the Lesbian

and Gay Equality Procject referred to one of his articles in

footnote 109 of their written argument. His agenda is clear. In

2002 he said the following :

“As sex, sexual orientation, and gender identity discrimination

35
“Same-sex marriage, the right to equality and the SA Constitution”
(1996) 11 SAPR/PL, p355 at 359-60
 - 27 -
in religious

institutions

wither away, the need for religious exemption in the religious

private sphere will disappear. Although it is unlikely to appear

witin my lifetime, I look forward to the day when, for example,

the first lesbian Pope issues her apology for the sins of the

Roman Catholic Church against LGBT (lesbian, gay, bisexual

and transgendered) persons around the world. And I am sure

that Bertha Wilson (former Supreme Court of Canada Judge)

will welcome that day too”36

33. In the final analysis, there will be only one, not two institutions

of marriage in our society. The redefinition of marriage

reshapes the social institution of marriage into nothing more

than a “shrine for love and commitment” where adult choice is

not only necessary but sufficient to constitute a marriage.

This fundamentally conflicts with the current institution and its

role in fostering the private welfare of children.

34. Marriage is the foundation on which families are built and the

primary way in which couples and families organise their lives.

The State has a legitimate and important purpose in

36
“Religion vs Sexual Orientation?: A clash of Human Rights?” Vol 1,
No 2 Journal of
Law and Equality, Fall 2002, 126-153 at 153
 - 28 -
supporting

marriage. It

further has a legitimate role in protecting the diverse religious

interests of various communities in South Africa.

35. The State further has a compelling interest in fostering the

private welfare of children.

36. There is a rational, indeed compelling, relation between the

limitation and its purpose. The limitation is designed to

protect and ensure the continued existence and vitality of an

important, if not vital, social institution.

37. The common law rule limits the rights. The question whether

there are less restrictive means to achieve the purpose of the

common law rule in reality forms part of the question how,

and to what extent, the common law must be developed.

SHOULD THE COMMON LAW BE DEVELOPED BY REDEFINING

MARRIAGE?

38. Where the common law deviates from the spirit, purport and

objects of the Bill of Rights, it should be developed if it is

 - 29 -
possible and

appropriate37.

39. The development must be incremental.

40. For the reasons set out above, the redefinition of marriage will
not be an incremental step. It is a dramatic change which will
have many and, at this stage, unquantifiable consequences.
In this regard Spina J, in his dissenting judgment in the
Goodridge case, said:

“such a dramatic change in social institutions must remain at

the behest of the people through the democratic process”

41. Sosman J stated that the change “affects not just a load-

bearing wall of our social structure but the very cornerstone of

that structure.”

42. In Egale38 Prowse JA held that such a redefinition was not a

mere incremental change in the law. According to her such a

redefinition would constitute a profound change to the

meaning of “marriage” and would be viewed as such by a

significant portion of the Canadian public, whether or not it

supported the change39.

37
Carmichele v Minister of Safety and Security and Another 2001 (4)
SA 938 (CC) at para 39.
38
225 DLR 4th, 472, para 77 and 78
39
See Judicial Redefinition, pp77-78
 - 30 -
43. The

traditional,

shared recognition of marriage, uniquely bonds together all

ethnic, cultural and religious groups in South Africa. The

addition of same-sex relationships into this category is not

simply an addition, it is an obliteration of the prior category.

44. Almost 80% of South Africa’s population follows the Christian

faith40. In view of the fact that the common law definition does

not apply to African customary, Muslim and Hindu marriages,

and that the Constitution expressly provides for separate

legislation in respect of such marriages,41 it is inappropriate to

develop the common law. The Legislature should attend to

any definitional change.

45. In this regard, the dissenting judgment of Sosman J in the

Goodridge case is relevant. He said42:

“Based on our own philosophy of child rearing, and on our

observations of the children being raised by same-sex couples
to whom we are personally close, we may be of the view that
what matters to children is not the gender, or sexual
orientation, or even the number of the adults who raise them,

40
South Africa Yearbook 2003/04 pp 5-7. The figure is based on the 2001
census
41
Section 15(3)
42
para 87, 88 and 91
 - 31 -
but rather
whether those
adults provide the children with the nurturing, stable, safe,
consistent and supportive environment in which to mature.
Same-sex couples can provide their children with the requisite
nurturing, stable, safe, consistent and supportive environment
in which to mature, just as opposite-sex couples do. It is
therefore understandable that the court might view the
traditional definition of marriage as an unnecessary
anachronism, rooted in historical prejudices that modern
society has in a large measure rejected and biological
limitation that modern science has overcome.

It is not, however, our assessment that matters.

Conspicuously absent from the court’s opinion today is any
acknowledgement that attempts at scientific study of the
ramifications of raising children in same-sex couple
households are themselves in their infancy and have so far
produced inconclusive and conflicting results.
Notwithstanding our belief that gender and sexual orientation
of parents should not matter to the success of the child-
rearing venture, studies to date reveal that there are still
some observable differences between children raised by
opposite-sex couples and children raised by same-sex
couples. … Our belief that children raised by same-sex
couples should fare the same as children raised in traditional
families is just that: a passionately held but utterly untested
belief. The Legislature is not required to share that belief but
may, as the creator of the institution of civil marriage, wish to
see the proof before making a fundamental alteration to that
institution. … Before making a fundamental alteration to that
 - 32 -
cornerstone, it
is eminently
rational for the Legislature to require a high degree of
certainty as to the precise consequences of that alteration, to
make sure that it can be done safely, without either
temporary or lasting damage to the structural integrity of the
entire edifice. The court today blithely assumes that there are
no such dangers and that it is safe to proceed. … an
assumption that is not supported by anything more than the
court’s blind faith that it is so”.

46. Separate but equal means that two entities are inherently the
same but are nonetheless treated differently. That is
discrimination.

Different but equal means that two entities are not inherently
the same but are treated equally. That is the antithesis of
discrimination.43

47. In the context of a separate institution for same sex couples in

a committed relationship, Margaret Somerville says the

following44:

“Same-sex marriage advocates claim that an approach based

on two separate-but–equal institutions is discriminatory in its

essence. If so, it would be unacceptable. To decide we must

look first at the context in which separate-but–equal

43
Margaret Somerville: Divorcing Marriage, p72
44
Divorcing Marriage pp 75-6
 - 33 -
institutions

are proposed;

second, at whether there is a relevant difference between

them; and third, at the reasons for adopting that approach. ..

(T)he judgment of … Brown v The Board of Education45 …

concluded that

‘In the field of public education, ‘separate but equal’ has no place.

Separate educational facilities (on the basis of race) are inherently

unequal’

But that is not necessarily true of establishing separate

institutions in other areas on other grounds.

In particular, it is not necessarily true of institutions for the

public recognition of committed adult relationships when, as is

true for marriage and civil unions, they encompass different

realities and carry different symbolism. Indeed it is not even

true of all separate educational institutions. Separate schools

for girls and boys – separate, that is on the basis of sex and

not race… - can be equal and are not seen as discriminatory

by most people, even though sex, like race, is normally a

prohibited ground of discrimination….

45
(1954) 347 US 483
 - 34 -
Take the

example of

allocating shared hospital rooms. Allocating shared rooms on

the basis of race would be discrimination, but doing so on the

basis of sex is not. Indeed, failure to do the latter can be a

breach of a person’s human rights and dignity.”

48. The fact that, in most countries, the legislature adopted

legislation providing for such separate institutions proves the

correctness of Somerville’s views.

49. The argument that homosexual partners do not seek to limit

procreative heterosexual marriage in any way, but only gain

access for themselves, is generally referred to as the “no

downside argument”.

50. It can be said, at least for purposes of argument, that this

argument concedes that man/woman marriage serves good

and even optimal, important governmental interests relative

to procreation. It then asserts, however, that opening

marriage to same-sex couples will visit no harms upon the

institution of marriage. The rate of man/woman marriage will

not decline and married men and women will continue at an

undiminished rate to have and rear children. At the same

 - 35 -
time, the

argument

asserts, such opening will result in valuable goods, namely an

increase in same-sex couples’ sense of dignity, and equality

and greater security for their children. The argument’s

conclusion is that it is irrational not to “open” marriage to

same-sex couples where there is no-downside and such a

substantial upside.

51. In short, the argument says that the State’s interest in

marriage will not be adversely affected if same-sex couples

are allowed to marry. Married same-sex couples will

strengthen and enhance the importance of marriage in South

African society.

52. To date there is no conclusive research in this area because

same-sex marriage is a recent phenomenon. There is,

however, research that appears to contradict this argument.

The institution of marriage links heterosexual bonding,

procreativity and natural parent-child connectedness for the

benefit of children and society at large. Defining marriage as

the “union of any two persons” necessarily destroys this

linkage. It destroys the unique social-sexual ecology in

human life that marriage represents. It removes the symbolic

 - 36 -
importance of

procreation to

the detriment of society and future generations and it

separates parenthood from marriage..

53. The latter phenomenon is documented and researched in

family life in Scandinavian countries that have legalised same-

sex marriages. In two articles, “The end of marriage in

Scandinavia: the “conservative case” for same sex-marriages

collapses”46 and “Going Dutch?: Lessons of the same-sex

marriage debate in the Netherlands”47 a research fellow at the

Hoover Institution, Stanley Kurtz, concluded that the de facto,

and at times de jure, recognition of same-sex marriage in

European countries such as the Netherlands, Sweden,

Denmark and Norway was both an effect and a reinforcing

cause of the separation of marriage and parenthood. Kurtz

argues that instead of leading to an increase in the marriage

relationship of these countries, recognition of same-sex

marriage drove home the message that “Marriage itself is out-

dated, and that virtually every family form, including out of

wedlock parenthood, is acceptable.” His findings do not

attribute these results solely to the recognition of same-sex

46
The Weekly Standard, February 2, 2004, (The February 2004 article)
47
The Weekly Standard, May 31, 2004, (The May 2004 article)
 - 37 -
marriage

(because

there was already a trend towards separation of marriage and

parenthood) but emphasise that recognition of same-sex

marriage has further undermined the institution of marriage

by widening the separation.

54. A further State interest in the protection of the heterosexual

institution of marriage is the need of the upholding of the

coherence, and the “civic glue” of civil society. The traditional

male and female heterosexual idea of marriage is shared by

the majority of South Africans, immaterial of race, religion and

ethnic grouping. This forms part of the larger concept of

ubuntu. Ubuntu places the individual and his or her rigths in

the larger context of the community, which has shared

perceptions and practices to ensure social well-being. If, as a

so-called act of “inclusion”, same sex-marriage is established

as a norm, the vast majority of cultures and religions in South

Africa will find themselves excluded from the “new”

mainstream by virtue of their opposition to same sex-

marriage. If same-sex relationships are recognised as

marriages, the “civic glue” of shared male/female marriage

recognition will be dissolved by forced judicial inclusion of

same-sex relationship recognition into the marriage category.

 - 38 -
55. The change

that would be

achieved by a redefinition is not simply an addition of gay and

lesbian couples to the traditional institution of marriage. It is

a destruction of the institution and the creation of a new one. It

is argued that what is being sought is "civil marriage" and

that this will not effect religious conceptions of marriage.

Underlying this is a view that society divides neatly into

two compartments: one labelled "civil" and the other

"religious." This argument is inaccurate and dangerous

since is would skew analysis in a direction that favours

the beliefs (or worldview) of atheists and agnostics as

against religious believers. The Supreme Court of

Canada rejected the idea that there can be a "bright line"

between civil and religious when it held that the term

"secular" must be interpreted so as to include religious

beliefs rather than exclude them.48

The majority judgment of McLachlin C.J.C. referred to the meaning of

“secular” with approval to the dissenting judgment of Justices Gonthier

and Bastarache which held:

48
Chamberlain v Surrey School District No. 36[2002} 4.S.C.R 710
 - 39 -
136 The discussion
above is consistent
with the proper
understanding of "secular" and "non-sectarian", terms referred to in s. 76 of
the School Act, which provides general direction as to how all schools are to
be conducted. A proper understanding of these concepts was well elaborated
by the Court of Appeal below and has been discussed in the reasons of the
Chief Justice. 49
137 In my view, Saunders J. below erred in her assumption that "secular"
effectively meant "non-religious". This is incorrect since nothing in the
Charter, political or democratic theory, or a proper understanding of pluralism
demands that atheistically based moral positions trump religiously based
moral positions on matters of public policy. I note that the preamble to the
Charter itself establishes that "... Canada is founded upon principles that
recognize the supremacy of God and the rule of law". According to the
reasoning espoused by Saunders J., if one's moral view manifests from a
religiously grounded faith, it is not to be heard in the public square, but if it
does not, then it is publicly acceptable. The problem with this approach is that
everyone has "belief" or "faith" in something, be it atheistic, agnostic or
religious. To construe the "secular" as the realm of the "unbelief" is therefore
erroneous. Given this, why, then, should the religiously informed conscience
be placed at a public disadvantage or disqualification? To do so would be to
distort liberal principles in an illiberal fashion and would provide only a feeble
notion of pluralism. The key is that people will disagree about important
issues, and such disagreement, where it does not imperil community living,
must be capable of being accommodated at the core of a modern pluralism.

The "civil" is not, therefore, to be viewed as a "religiously free" realm but

one that includes all citizens whether they are religious or not. The
court, therefore, should avoid any analysis that defines the "civil" as
exclusive of religion or in ways that covertly or tacitly partake of the
anti-religious ideology of "secularism" for to do so would use legal
interpretation in aid of an ideology that is itself exclusionary and
unfair50..

49
Iain T Benson : “Notes Towards a (Re)Definition of the
“Secular””(2000),33 U.B.C.L. Rev 519
50
Iain T Benson: “considering Secularism” inDouglas Farrow, ed
“Recognizing Religion in a Secular Society ( Montreal: McGill/Queens,
2004) 83-98
 - 40 -
56. For all these

reasons the

Court should not develop the common law as requested, but

leave any changes to the law to the legislature.

 - 41 -
INTERNATIONAL

LAW

57. The United Nations does not recognise a right to same-sex

marriages. In the summer of 2002, the United Nations

Human Rights Committee held that a New Zealand law

denying marriage licences to same-sex couples does not

violate the international covenant on civil and political rights51.

The Committee stated:

“The treaty obligation of States … is to recognise as marriage

only the union between a man and a woman wishing to be
married to each other. “

58. Other U.N documents that reaffirm heterosexual institution of

marriage and the family are:

57.1 The African Charter of Human Peoples’ Rights, 1981

(Article 18(1)); The International Covenant on Civil and

Political Rights, 1966 (Article 23(4));

57.2The International Covenant on economic, social and

cultural rights 1966 (Article 10);

57.3The International Convention on the Elimination of all

51
Joslin v New Zealand (Communication No 902/1999) (17 July 2002)
UN Doc CCPR/C/75/D/902/1999 (2002).
 - 42 -
forms of

racial

discrimination, 1965 (Article 5);

57.4The Convention on the Elimination of all forms of

discrimination against women (Articles 9 and 16);

57.5The American Convention on Human Rights (Article 17).

59. The European Union does not recognise a right to same-sex

marriages. The European Convention on Human Rights

states:

“Men and women of marriageable age have the right to marry

and to found a family, according to the national laws
governing the exercise of this right. The European Court of
Human Rights has repeatedly held that: (1) The “right to
marry guaranteed by Article 12 refers to the traditional
marriage between persons of opposite biological sex” and (2)
“The exercise of this right shall be subject to the national laws
of the contracting States”52.

60. Most free and democratic societies, committed to human

dignity, equality and freedom, continue to define marriage as

the union of husband and wife. As of March 1 2005, Belgium

52
Rees v United Kingdom 9 EHRR 56 (1987) at para 49; See also
Cossey v United Kingdom 13 EHRR 622 (1991) at para 43; Sheffield and
Horsham v United Kingdom, 27 EHRR 163 (1999) at para 66.
 - 43 -
and the

Netherlands

remained the only nations in the world to recognise same-sex

couples as married under national law. Courts in seven (of

ten) provinces of Canada have declared a right to same-sex

marriage (and the Canadian Parliament is debating national

legislation). In the United States, one State Court

(Massachusetts) out of fifty states currently affirms the right to

same-sex marriage. While there has been some modest

movement in favour of same-sex marriage, the vast majority

of democratic nations committed to human dignity, equality

and freedom continue to reserve marriage to opposite sex

couples. For example, since November 2003 when the

Goodridge decision was handed down in Massachusetts,

Courts in Arizona, Indiana, New Jersey, New York and West

Virginia, as well as two US Federal Courts, have declared that

marriage laws do not violate the principles of equal

protection53.

53
Standhardt v Superior Court, 77 P.3d 451 (Ariz. App Div 1, 2003)
(review denied May 26 2004); Morrison v Sadler 821 N.E 2d 15 (Ind. App.
2005); Lewis v Harris case no. MER-L-15-03 (N.J. Super. Ct.) Nov 5 2003);
Link v King (W.Va 2004) (mandamus action dismissed April 1, 2004);
Seymour v Holcomb Case no. 2004-0458; 2005 NY Misc Lexis 313 (Feb 23
2005); Shields v Madigan, case no. 1458/04, 783 NYS 2d 270 (Supr. Ct. NY.
2004); In re: Kandu, 315 B.R. 123 (Bankr. W.D.Wash. 2004) Wilson v Ake, F
Supp. 2d 1298 (M.D. Fla. 2005)
 - 44 -
61. Over the past

decade 40

American states and two Native American Tribes have adopted

legislation affirming the definition of marriage as the union of

husband and wife. In the past year alone 14 American states

have, through constitutional referendum, amended their State

Constitutions to affirm marriage as the union of husband and

wife.

62. In August 2004 a broad majority of the Australian Parliament

passed new legislation affirming marriage as the union of

husband and wife54.

63. In adopting civil union legislation in 2004, New Zealand also

rejected same-sex marriage, maintaining a definition of

marriage as the union of husband and wife.55

FURTHER EVIDENCE TO BE ADDUCED

64. If allowed, the amicus will introduce the evidence of the

following expert witnesses which it submits are relevant in

determining a case of this fundamental importance, especially

54
Marriage Amendment Act, 2004 No. 126 (Australia) (“Marriage
means the union of a man and a woman to the exclusion of all others,
voluntarily entered into for life”)
55
Civil Union Act, 2004, No. 102
 - 45 -
since the

record

contains no evidence about the intrinsic nature of marriage,

any changes thereto and the possible societal consequences

of a redefinition :

63.1Daniel Cere, the Director for the Institute of Study of

Marriage, Law and Culture, Montreal. A copy of an

affidavit which sets out the nature of his evidence is

attached. As appears from the affidavit, his evidence is

given from a Roman Catholic perspective. He also deals

with the theories underlying many of the debates over

same-sex marriage, namely social constructionism and its

variants poststructuralism and deconstructionism.

63.2Katherine K Young, James McGill, Professor and Professor

of Religious Studies, McGill University. A copy of an

affidavit which sets out the nature of her evidence is

attached. It inter alia deals with what universally

constitutes marriage and why. It is similar to the affidavit

which was filed in the Halpern case. She incorporated

much of that affidavit in the chapter which Paul Nathanson

and she wrote as part of Divorcing Marriage.

 - 46 -
63.3In the

absence of

comparable research in South Africa, affidavit(s) referring

to social research in America that affirm that children do

best when they are born into and reared by a family

composed of their two natural parents bound in marriage.

This research shows that children raised by the married

natural parents are more likely to be healthy in mind and

body and to succeed in school, work and in life. They are

less likely to be physically, sexually or mentally abused, to

use illegal drugs, to be involved in the juvenile justice

system, to become wards of the State or to attempt

suicide. Social research also indicates that the reduction

of marriage to a pliable close personal relationship regime

means more unstable and less child-centred marriages.

63.4Affidavit(s) confirming Stanley Kurz’s articles referred to in

paragraph 52.

CONCLUSION

65. Cameron was correct when he described marriage as a

heterosexual institution and that it is unnecessary and

 - 47 -
inappropriate

that same-sex

couples be allowed to marry. Their exclusion from the

institution is not discriminatory.

66. In the alternative, if it is regarded as being discriminatory, the

discrimination is not unfair and is furthermore a justifiable

limitation of the rights of same-sex couples.

67. In view of the fundamental change that a redefinition will

bring about, the importance of the institution, the

international trend to legislate for separate institutions and

the fact that there is already legislative recognition of African

customary marriages which are, in certain respects,

incompatible with the common law definition, the Court should

leave it to the Legislature to effect whatever changes are

required in the law.

G C PRETORIUS
SC

D M ACHTZEHN

P G SELEKA
 - 48 -

J R BAUER

Amicus Curiae’s Counsel

Sandton Chambers
6 May 2005.