Although the challenge to section 30(1) of the marriage Act as such was not before the SCA, the SCA devoted appreciable consideration to interpreting its phrases and evaluating its significance in relation to the widespread legislation. The state submitted that the SCA had misdirected itself in concluding that the frequent regulation definition of marriage violates the constitutional rights of lesbian and gay individuals to equality. The state agreed with the SCA that the primary difficulty was whether identical-intercourse partners needs to be granted entry to the existing widespread law institution of marriage, but disputed the finding that same-sex couples had been entitled to such entry. The overall outcome was that the state has sought depart to attraction towards the SCA’s decision on the premise that it went too far, whereas the candidates have sought leave to cross-appeal on the grounds that it did not go far sufficient. Of their software to cross-attraction they accordingly supported the reasoning of Farlam JA relating to updating the wedding Act, whereas objecting to his suspension of the development of the widespread legislation. They sought to steer further proof and to make written submissions, while Mr Smyth in addition requested go away to make oral submissions. Their software to adduce further evidence was refused, but they had been granted depart to make written submissions and Mr Smyth was authorised to handle the Court orally.
These enactments evidence an consciousness on the a part of Parliament of the altering nature of the concept of the family in our society. The applicants for his or her part were sad because though the newly developed definition of the frequent regulation included them in its terms, they have been nonetheless prevented from getting married by the phrasing of the wedding vows in the wedding Act. The principles forming part of our matrimonial relations which put the husband in a superior place and the spouse in an inferior one are no longer a part of our law. He would suspend the declaration of invalidity of the widespread law for 2 years, nonetheless, to enable Parliament to enact legislation to make sure the applicants’ rights to equality and human dignity are not unjustifiably infringed. In his view, nevertheless, the event of the widespread law to convey it into line with the Constitution must be suspended to allow Parliament to enact applicable legislation. He mentioned that Parliament has over time since 1994 enacted quite a few provisions giving recognition, in some cases expressly and in others impliedly, to identical-intercourse partnerships. The state noted an attraction on several grounds, revolving primarily around the proposition that it was not appropriate for the judiciary to bring about what it thought to be a momentous change to the institution of marriage, something, it contended, that must be left to Parliament.
The relief sought, the state contended, went past the powers of the Court. It adopted, the state contended, that the Equality Project was incorrect in searching for an order from this Court declaring the frequent legislation definition of marriage and the prescribed marriage formula in part 30(1) of the wedding Act to be unconstitutional. It contended, however, that granting identical-sex couples access to frequent regulation marriage will not be the reply, constitutionally or in any other case. The majority judgment by Cameron JA held, nevertheless, that though the common legislation definition should be developed so as to embrace identical-intercourse couples, the wedding Act could not be learn in such a approach as to incorporate them. Should the Court find, nonetheless, that the exclusion was unconstitutional, the state argued in the alternative that any order of invalidity must be suspended to enable Parliament, after intensive public debate, to deal with the matter through appropriate legislation. Furthermore, the declaration would fall away provided that such legislation was timeously enacted. The applicants’ true case was that they supposed to enter right into a marriage with each other and that they sought a declaration that such marriage, when entered into in accordance with the formalities in the wedding Act, can be legitimate and registerable beneath the marriage Act and the Identification Act.
The only potential route enabling them to marry underneath the Act was a tenuous one, particularly, to discover a sympathetic religious denomination with an inclusive marriage vow that was accepted by the Minister of Home Affairs. It proposes that same-intercourse relationships ought to be acknowledged by the law and identifies three alternative routes of effecting authorized recognition to such relationships, viz (a) opening up the widespread regulation definition of marriage to identical-intercourse couples by inserting a definition to that impact in the marriage Act; (b) separating the civil and religious parts of marriage, by amending the wedding Act to the extent that it’s going to solely regulate the civil side of marriage, particularly the necessities and the implications prescribed by law and by providing in it for civil marriage of both similar- and opposite-sex couples; and (c) offering what is known as a ‘marriage-like alternative’ according similar-intercourse couples (and presumably opposite sex couples) the chance of concluding civil unions with the same authorized consequences as marriage.