Marriage Equality

Minister of Home Affairs and Another v Fourie and Another (2005)

Do same-sex couples have the constitutional right to get married?

We just want that little white piece of paper.

Marié Fourie

applicant to the Constitutional Court, 2005


Marié Fourie and Cecelia Bonthuys, who had been living together in an exclusive relationship since 1994, claimed that they had been unfairly discriminated against because, under the Marriage Act 25 of 1961, they were not allowed to get married. The Act states that a marriage can only exist between a man and a woman. The couple had asked a local magistrate if she would marry them, and were told that they could be married, but that she would not be able to register
the marriage.

Path to the Constitutional Court

The couple approached the High Court in 2002 to register their marriage. The High Court refused, for the same reasons as the local magistrate. Fourie and Bonthuys argued that the law should be developed to promote the spirit, tenor, and aim of the Constitution, including the recognition of lesbian and gay marriages as legally binding.

The Lesbian and Gay Equality Project launched an application in the Johannesburg High Court and presented a challenge to the Marriage Act as unconstitutional on the basis that it discriminates unfairly against gay and lesbian couples.

The Marriage Alliance of South Africa, a church group, said: “Don’t call it marriage. Marriage as understood by all the major religions is between a man and a woman. Marriage was created with the objective of procreation and the protection of family life. Regulate the relationship but do not call it marriage.”

When the High Court refused to register their marriage, the couple then approached the Constitutional Court directly. Initially, the Constitutional Court said that the matter was for common law development and directed the Supreme Court of Appeal (SCA) to deal with the matter.

The SCA found that the common law should be developed to include same-sex marriage in its terms. However, same-sex couples were still prevented from getting married by the phrasing of the marriage vows in the Marriage Act.

The judgment revealed a “loophole” in the Marriage Act, which allowed the Minister of Home Affairs to approve and register marriages of a different formula (this was for the purposes of religious ceremonies), and that technically the Minister could allow the marriage formula to be altered to allow same-sex couples to marry.

The state considered this judgment to be too overreaching and appealed the matter to the Constitutional Court. The original applicants, however, felt that the judgment did not deal with their matter satisfactorily.

Some of the Arguments

Minister of Home Affairs

The state argued that it was not appropriate for the judiciary to bring about what it regarded as a momentous change to the institution of marriage. It felt that this was something that should be left to Parliament.

Marié Fourie and Cecelia Bonthuys

In the Constitutional Court, Fourie, Bonthuys and others argued that the Marriage Act should be developed to promote the spirit, tenor, and aim of the Constitution, including the recognition of lesbian and gay marriages as legally binding.

Why does giving the word ‘marriage’ to same-sex couples, undermine marriage?

Justice Albie Sachs


The Constitutional Court had to decide:

  • whether this exclusion of same-sex marriage in the Marriage Act was unconstitutional; and
  • whether inclusive protections incorporating lesbian and gay people into all aspects of constitutionalism should be enacted.

What did the Constitutional Court decide?

This landmark decision of the Constitutional Court found that same-sex couples have a constitutional right to marry. The Marriage Act was unconstitutional and violated section 9 of the Constitution – the Right to Equality. Section 9 is especially important in this case as it states that everyone is equal before the law and prohibits unfair discrimination on the basis of sexual orientation (among others). The Court gave Parliament one year to pass the necessary legislation. As a result, the Civil Union Act came into force on 30 November 2006, making South Africa the first country in Africa, and the fifth in the world, to legalise same-sex marriages. This triumph secured a victory for constitutionalism, which grants the Court the power to find legislation such as the Marriage Act unconstitutional.

The Court highlighted the plight of gay and lesbian people in South Africa, and the constitutional imperative of the country to recognise and protect this group of people. The judgment states that allowing same-sex marriage is an important step in achieving equality. It detailed the importance of marriage in our society, and that all members of society who wish to partake in marriage should be allowed to do so.

The judgment addressed the issue that allowing same-sex marriage would violate certain citizens’ freedom of religion. The Court stated that, “It is one thing for the Court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution.” Despite this, the judgment allowed marriage officers to object to performing a marriage ceremony for a same-sex couple based on religious objections, as per the existing Marriage Act.

The Act was not unconstitutional because of who it targeted but because it rendered same-sex couples invisible. The law was not providing same-sex couples with the same protection as heterosexual couples. I felt Parliament should be obliged to be involved – that they had the same duty to uphold equal rights.

In writing the judgment, we had to acknowledge the views of people who oppose same-sex marriage. They are not necessarily bigots. Courts cannot become the interpreters of scripture. But the same Constitution that protects same-sex couples must also protect the rights of religious communities. The secular and sacred coexist side by side. But the sacred cannot be used to define the rights of people in society. The tone of a decision had to respectively acknowledge difference.

Justice Albie Sachs


Impact and Significance

Fourie received a mixed response. It was criticised by some gay rights organisations for failing to make same-sex marriages effective immediately. The nub of the criticism was that Fourie deferred equality. The ruling party, in government, welcomed the decision, calling it “an important step forward”, but many other political parties were not as enthusiastic. Furthermore, churches – including the Anglican Church – voiced their disappointment with the decision.

Parliament did not alter the Marriage Act, but instead drafted the Civil Union Act 17 of 2006 which allowed same-sex couples to marry with all the legal benefits and consequences of marriage. The Civil Union Act has been strongly criticised. Those against same-sex marriage argued that the law lends itself to the support of sexual perversion. Those for same-sex marriage argued that the Civil Union Act discriminates against homosexuals because it permits clerics to refuse to solemnize homosexual marriages, creates a separate and parallel marriage regime for homosexuals, and requires marriage officers to enquire whether homosexual couples wish to call their union a marriage or a civil partnership.

In 2018, Parliament passed a Bill that would prevent marriage officers from refusing to marry same-sex couples. Previously, officers – including Home Affairs officials – could refuse to marry a same-sex couple if it went against their beliefs.

On a continent and in a world in which difference has all too often led to destruction and bloodshed, perhaps the Court’s most persistent theme has been to assert the inclusive moral citizenship of constitutional rights. Its most vivid jurisprudence here has been in response to litigation by gay and lesbian activist groups. In a series of far-going decisions, the Court has spelt out the meaning of constitutional equality and protection from discrimination for gays and lesbians.

Justice Edwin Cameron


Members of South Africa’s LGBTQ community take part in the annual Gay Pride Parade in Durban. Rajesh Jantilal/AFP/Getty Images.



Audio Visual

President Mandela gives his State of the Nation address in Parliament. Mandela ends his address with the words, “Let us all get down to work”.

“We must construct that people-centred society of freedom in such a manner that it guarantees the political and the human rights of all our citizens.”– President Mandela, extract from State of the Nation Address, 24 May 1994

President Nelson Mandela announces his cabinet. It includes members of the African National Congress, National Party and Inkatha Freedom Party.

“There was pride in serving in the first democratic government in South Africa, and then the additional pride of serving under the iconic leadership of Nelson Mandela … [He] represented the hopes of not just our country, but of oppressed, marginalised and the poor in the world.”– Jay Naidoo, then Minister of RDP housing
“We place our vision of a new constitutional order for South Africa on the table not as conquerors, prescribing to the conquered. We speak as fellow citizens to heal the wounds of the past with the intent of constructing a new order based on justice for all.”– President Nelson Mandela, 10 May 1994