Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs and Others

The matter comprises two related cases heard together. In the first (Fourie), Ms Fourie and Ms Bonthuys, a same-sex couple in a long-term relationship, sought legal recognition of their marriage. The Pretoria High Court dismissed their application because the common law defined marriage as a union of one man with one woman and the Marriage Act 25 of 1961 required a marriage formula using 'wife (or husband)'. The Supreme Court of Appeal upheld the appeal in part: the majority developed the common law definition to include same-sex couples but held that the Marriage Act formula prevented secular same-sex marriages; the minority would have interpreted the statute to permit them and suspended the order for Parliament to legislate. The State appealed to the Constitutional Court, and the applicants cross-appealed. In the second case, the Lesbian and Gay Equality Project and eighteen others challenged both the common law definition and section 30(1) of the Marriage Act in the Johannesburg High Court and applied for direct access to the Constitutional Court to have their challenge heard together with the Fourie appeal. The applicants contended that the exclusion violated their rights to equality, dignity and privacy under the Constitution.

• Whether the common law definition of marriage and section 30(1) of the Marriage Act unfairly discriminate against same-sex couples on the ground of sexual orientation in violation of sections 9, 10 and 14 of the Constitution
• If unfair discrimination is established, what is the appropriate remedy, and whether the Court should develop the common law, read words into the statute, or leave reform to Parliament
• Whether the application by the Lesbian and Gay Equality Project for direct access to the Constitutional Court should be granted in the interests of justice

Not available in the provided extract. The judgment text is truncated at para [64] and does not include the final order disposing of the appeal, cross-appeal or the remedy granted.

The complete ratio decidendi cannot be extracted because the judgment is incomplete. The reasoning in the provided portion indicates that the Constitutional Court considered the exclusion of same-sex couples from marriage to constitute unfair discrimination and a violation of human dignity, but the precise binding principle and concomitant remedy are contained in the part of the judgment not provided.

A definitive identification of obiter dicta by the Constitutional Court is not possible from the incomplete extract. The text contains general constitutional observations that form part of the Court's reasoning, including that the Constitution affirms a 'right to be different' and celebrates pluralism (paras [59]–[61]), and it quotes previous jurisprudence noting that comprehensive legislation regularising same-sex relationships is preferable to piecemeal judicial relief (para [58]).

The case is of foundational importance in South African law as it squarely addresses whether the Constitution permits the state to confine the institution of marriage to heterosexual couples. It traverses the intersection of sexual orientation, equality, dignity and family life; affirms that gays and lesbians are a vulnerable minority entitled to constitutional protection; examines the respective roles of the judiciary and Parliament in reforming the law of marriage; and clarifies the approach to direct access where overlapping constitutional claims are before the Court.