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252
In the past, the Minister of Home Affairs refused to approve marriage
formulae that referred to same-sex couples. Once a religious denomination
or organisation has acquired the Minister's approval of its marriage
formula it will be able to marry same-sex couples. No religious
denomination or organisation will however be compelled to marry samesex
couples. Until the Marriage Act is amended same-sex couples who do
not wish to have a religious marriage ceremony will not be able to get
married. (The supreme court of appeal did not consider the constitutionality
of the marriage formula in the Marriage Act, as the parties did not
dispute the constitutionality of the Act.) This state of affairs clearly
amounts to inequality before the law and unequal protection and benefit
of the law, which violates section 9 of the Constitution. However, the
position may soon change, as the Minister of Home Affairs has lodged an
appeal against the supreme court of appeal's decision.
ACTIVITY
John and William have been living together as life partners for 10 years
and wish to get married now. They want to know from you if they can
conclude a valid marriage. Advise them on this matter.
FEEDBACK
Since the decision in Fourie v Minister of Home Affairs dealt only with the
common-law definition of marriage and not with the marriage formula in
the Marriage Act which refers to ``husband'' and ``wife'', John and William
can still not conclude a valid marriage. The Marriage Act however allows
marriage officers who are ministers of religion or who hold a responsible
position in a religious denomination or organisation to follow the marriage
formula which is usually observed by that denomination or organisation if
the particular formula has been approved by the Minister of Home Affairs.
Therefore, if a religious denomination or organisation obtains the
Minister's approval of a marriage formula which makes provision for
same-sex couples John and William will indeed be able to conclude a valid
marriage. A constitutional attack on the Marriage Act's prohibition on
same-sex marriage would probably also be successful, as such prohibition
clearly violates gay and lesbian persons' rights to equality, dignity and
privacy.
QUESTIONS
NB: Make sure that you can answer these questions properly. They
are designed to test your knowledge of the study material in
this study unit.