Minister of Home Affairs v Fourie

The Constitutional Court declared the common-law definition of marriage and section 30(1) of the Marriage Act 25 of 1961 unconstitutional for excluding same-sex couples. The Court suspended the declaration of invalidity for twelve months to allow Parliament to remedy the defect, failing which a reading-in remedy would take effect to extend marriage to same-sex couples.

Same-sex couples challenged the exclusion of their relationships from the common-law and statutory definition of marriage, which was limited to unions between a man and a woman. The applicants sought relief under the Constitution's equality and dignity provisions, arguing that the exclusion constituted unfair discrimination on the basis of sexual orientation.

Whether the exclusion of same-sex couples from the institution of marriage violated their constitutional rights to equality and dignity.

The Court held that the common-law definition of marriage and section 30(1) of the Marriage Act were unconstitutional for unjustifiably infringing the equality and dignity rights of same-sex couples. The declaration of invalidity was suspended for twelve months to permit Parliament to cure the defect.

The limitation of marriage to opposite-sex couples constitutes unfair discrimination on the basis of sexual orientation and violates the constitutional rights to equality and dignity, as the exclusion is not justifiable in an open and democratic society.

The Court found that denying same-sex couples access to marriage imposed a significant dignitary harm and perpetuated systemic disadvantage against them based on sexual orientation. The exclusion could not be justified under the limitations clause, as it served no legitimate governmental purpose and imposed severe burdens on a historically marginalized group. Parliament was given the primary responsibility to remedy the defect, with the Court providing a fallback reading-in mechanism.

The Court extensively discussed different models for remedying the unconstitutionality, including civil unions as an alternative framework, and noted the important role of religious and conscientious freedom for marriage officers in the reformed legal framework.

Fourie is a landmark case establishing marriage equality in South Africa and is central to teaching on equality rights, sexual orientation discrimination, and the Constitution's transformative vision. It demonstrates the Court's approach to remedies and the separation of powers between judiciary and legislature.

Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) [2005] ZACC 19