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256 Chapter 15
unjustifiably infringes rights while the egalitarian vision compels
calculated and measured steps by the state towards the attainment
of a fairer and more compassionate society. The right to equality had
to be construed in a manner that did not intrude into and inhibit the
enforcement of socio-economic and other rights. When the process of
interpreting the Interim Constitution started, we could not be entirely
sure as to which vehicle would be best suited to achieve the object of
improving the quality of life of all persons and freeing the potential
of each person. Hence it made sense to allow each right and cluster
to which it belonged to develop incrementally and not to engage
prematurely in expansive reflection that might have retarded the
development of perhaps more relevant and directly applicable rights.
With the growth, development and interpretation of all rights, the
vista is much clearer now and thus it is now more appropriate for
expansive development of egalitarian principles.
The ‘cautious’ equality was able to yield the far reaching and
radical result of moving this society within a period of just over ten
years from a legal context in which it was a criminal offence for
consenting males to engage in sexual conduct to one where the state
is obliged to regulate gay and lesbian marriages in a materially
comparable manner to that which applies to opposite sex marriages.
Other momentous journeys in the history of constitutional law were a
lot more protracted and incremental. In the US, the validation of the
segregationist ‘separate but equal’ doctrine in Plessy v Ferguson 4 was
overturned almost 58 years later in Brown v Board of Education. 5 The
major rapid change in South Africa that affirmed gays and lesbians as
persons of equal worth took place through litigation — based on the
rights to equality and to dignity — and involved minimal legislative
inter-vention.
Constitutional space exists for individuals and organisations to
achieve far reaching, almost revolutionary, changes. While the
organised gay and lesbian community contributed to this
development, it would be unjustifiably benevolent to attribute these
profound changes in the law to an organised and carefully thought out
systematic pattern of litigation. The courts were primarily responsible
for these changes. In National Coalition for Gay and Lesbian Equality
v Minister of Justice (‘NCGLE’), 6 the Court set aside laws that
criminalised consensual sexual conduct (sodomy) between male
adults. Rather than relying on the directly applicable right to privacy,
the matter was decided primarily on the basis of equality and dignity.
The tracks laid down, ultimately led to the decision in Fourie. Our
4 Plessy v Ferguson 163 US 537 (1896).
5 Brown v Board of Education 347 US 483 (1954)
6
National Coalition for Gay and Lesbian Equality & Another v Minister of Justice &
Others 1999 1 SA 6 (CC), 1998 12 BCLR 1517 (CC).