Minister of Home Affairs v. Fourie
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Minister of Home Affairs v. Fourie is a case decided by the Constitutional Court of South Africa declaring a constitutional right to same-sex marriage. This made South Africa only the fifth nation in the world to recognize such a right, after The Netherlands, Belgium, Spain, and Canada. Fourie was decided on December 1, 2005, in a holding authored by Justice Albie Sachs. It was unanimous among the eleven justices of the Court, except as to the remedy, in which the majority held that the legislature had one year to rewrite statute in conformity with its decision, otherwise the ruling would displace the statute; Justice Kate O'Regan, the lone dissenter in part, although stating "[t]here is very little in the comprehensive and careful holding of Sachs, J., with which I disagree," thought the holding should become immediately enforceable.
The Court's holding is based on Section 9 of the Constitution of South Africa, particularly on the guarantee of equal rights and equal protection for all under § 9(1) and the explicit prohibition on discrimination, including on the basis of sexual orientation, in § 9(3). The Court said 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 was 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; there is no comprehensive legal regulation of the family law rights of gays and lesbians; and that South Africa's Constitution represents a radical rupture with the 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. He pointed out that at issue was the need to affirm the character of society as one based on tolerance and mutual respect.
