Authored By: Nolwazi Qhawekazi Mtolo
University of Fort Hare
Introduction
Before the Fourie case, South African law, both common law and the Marriage Act 25 of 19611, recognised only heterosexual marriages. As a result of this, same-sex couples, including Fourie and Bonthuys, were denied the right to marry and were consequently excluded from the legal protections and benefits that marriage provides, such as inheritance rights, spousal benefits, and recognition as next of kin. In response, Fourie and Bonthuys challenged the common law definition of marriage, seeking legal recognition of their union. Separately, the Lesbian and Gay Equality Project launched a challenge against the Marriage Act itself, requesting the immediate reading-in of words to allow same-sex couples to marry. While the Minister of Home Affairs acknowledged that this exclusion constituted discrimination, it argued that Parliament, rather than the Court, should determine the legislative remedy, citing the sensitive social, cultural, and religious dimensions of the marriage. These matters were consolidated before the Constitutional Court. The broader context of the case included South Africa’s constitutional protections against discrimination based on sexual orientation, the ongoing societal transformation following the end of Apartheid in 1994, and emerging international debates on the recognition of same-sex marriages.
Facts
The case originated with Ms Marie Fourie and Ms Cecelia Bonthuys, a lesbian couple who had shared a long-term, committed relationship. They sought to formalise their union through marriage, but the authorities refused their request, citing the law’s restriction to heterosexual unions. Experiencing both practical and symbolic harms, Fourie and Bonthuys approached the courts to challenge the constitutionality of the common law definition of marriage and to seek recognition of their partnership.
1 Marriage Act 25, 1961.
In a parallel development, the Lesbian and Gay Equality Project, an organisation that advocates for LGBTQI+ rights in South Africa, brought a separate application. Rather than focusing on an individual couple, this challenge addressed the broader issue of systemic exclusion. The Equality Project argued that same-sex couples were denied the ability to marry, purely because of their sexual orientation, and that the Marriage Act itself was therefore unconstitutional. They then sought the immediate reading-in of words to the statute to permit same-sex marriages, expressing concern that leaving the matter solely to Parliament could prolong discrimination and create inequitable delays.
The Constitutional Court consolidated the two applications, recognising that both arose from the same systemic issue: the exclusion of same-sex couples from civil marriage. The case then encompassed not only the personal experiences of Fourie and her prospective spouse, but also the broader implications for all same-sex couples in South Africa. It highlighted the tension between South Africa’s progressive constitutional principles, which mandate equality and human dignity, and the historical legal framework, which perpetuated discrimination.
Issues
There were two main issues before the Court in this case. The first was whether the exclusion of same-sex couples from marriage was unconstitutional. This included examining whether the common law definition of marriage, which is “a union between one man and one woman”, and the Marriage Act unfairly discriminated against same-sex couples and violated their constitutional rights to equality and dignity.
The second issue was what the appropriate remedy should be if the exclusion was unconstitutional. It had two options: whether to immediately ‘read in’ wording to allow same sex marriage, or to give Parliament time to create legislation that recognises same-sex marriage in a constitutionally compliant way.
Arguments
Fourie, Bonthuys, and the Lesbian and Gay Equality Project argued that exclusion from marriage is unconstitutional. They argued that denying same-sex couples access to marriage violated their right to equality in that the common law definition and the Marriage Act discriminated based on sexual orientation, which is explicitly prohibited under the Constitution2. They further argued that their right to dignity was violated, in that being excluded from marriage relegated same-sex relationships to an inferior status, denying them full social and legal recognition. They contended that marriage carries profound social significance and important legal protections; therefore, excluding them from this institution was not merely a procedural matter, but deeply demeaning. The Lesbian and Gay Equality went further and argued that the courts should immediately read in words to extend marriage to same-sex couples. They further said that the matter should not be left to Parliament because same-sex couples continued to face harm every day, and that the law remained unconstitutional.
As much as the Minister of Home Affairs and the State acknowledged discrimination, they argued for legislative, and not judicial reform. They conceded that excluding same-sex couples from marriage was discriminatory but argued that Parliament should be allowed to design a comprehensive regulatory framework for same-sex unions. They further stated that changing the marriage law had significant social, cultural, and religious implications and therefore required democratic deliberation. They further emphasized that marriage is a deeply religious and cultural institution and that any sudden judicial rewriting of the Marriage Act might conflict with beliefs held by various communities. Therefore, they argued for a cautious, consultative process through the legislature. They further argued that legislation was also required to update administrative systems, revise other statutes that refer to ‘husband’ and ‘wife’, and ensure consistency across the legal system, something a simple ‘read-in’ would not achieve.
Religious and amicus curiae groups also had a few arguments to bring forward. They claimed that marriage, by religious doctrine, is between a man and a woman, and courts should not redefine it. They further argued that recognising same-sex marriage might interfere with their freedom of religion and that this forces religious marriage officers into actions against their beliefs.
Judgment
The Constitutional Court granted both the Minister and Director-General leave to appeal, as well as Fourie and Bonthuys leave to cross-appeal against the judgment of the Supreme Court of Appeal. The Court set aside the SCA’s order and declared that the common-law definition
2 Constitution of the Republic of South Africa.
of marriage, to the extent that it restricted marriage to heterosexual couples, was inconsistent with the Constitution and therefore invalid because it denied same-sex couples the status, benefits, and responsibilities afforded to opposite-sex spouses. To respect the role of Parliament in designing an appropriate legislative framework, the Court suspended the declaration of invalidity for a period of twelve months to allow Parliament to correct the constitutional defects. The Minister and Director-General were ordered to pay the costs of the respondents, including the costs of two counsel, in the High Court, the SCA, and the Constitutional Court. In the Equality Project matter, the Court granted direct access and likewise declared the common-law definition of marriage unconstitutional. It also found that section 30(1) of the Marriage Act was invalid because it failed to include the gender-neutral term “or spouse” after the words “or husband,” perpetuating the exclusion of same-sex couples from civil marriage. This invalidity was also suspended for twelve months. The Court further ordered that, if Parliament did not rectify the defects within that time, section 30(1) of the Marriage Act would automatically be read as though the words “or spouse” appeared after “or husband.” Finally, the Court ordered the Minister and Director-General of Home Affairs and the Minister of Justice and Constitutional Development to pay the applicants’ costs, including the costs of two counsel.
Ratio Decidendi
The Constitutional Court found that preventing same-sex couples from entering civil marriage was unconstitutional because it amounted to unfair discrimination based on sexual orientation, a ground expressly prohibited by the Constitution. This exclusion violated the rights to equality (s 9) and dignity (s 10). The Court emphasised that marriage is a significant social and legal institution that grants important status, protections, and responsibilities. Denying same-sex couples access to this institution devalues their relationships, undermines their inherent worth, and perpetuates historical patterns of exclusion. Consequently, both the common law definition of marriage and the wording of the Marriage Act, which confined marriage to heterosexual couples, failed to meet the constitutional requirement that everyone be treated with equal respect and consideration.
The Court also held that although it must declare unconstitutional laws invalid, determining the detailed legislative structure for recognising same-sex marriages is primarily the responsibility of Parliament, given the broader cultural, social, and administrative consequences of altering marriage law. For this reason, the Court suspended its declaration of invalidity for a period of 12 months to enable Parliament to adopt legislation consistent with the Constitution. However, it stressed that constitutional entitlements cannot be left unrealised indefinitely; if Parliament did not act within the allotted time, the Court’s own reading-in remedy would automatically take effect.
Ultimately, the core principle of the decision is that the Constitution’s guarantees of equality and dignity mandate that same-sex couples must have equal access to civil marriage, and any legal rule excluding them is unconstitutional.
Conclusion
The Fourie judgment stands as a landmark affirmation of South Africa’s constitutional commitment to equality, dignity, and the protection of vulnerable groups. By recognising that the exclusion of same-sex couples from civil marriage entrenched discrimination and undermined the equal worth of LGBTQ+ persons, the Constitutional Court confirmed that constitutional rights cannot be selectively applied or constrained by historical prejudice, cultural tradition, or religious doctrine. At the same time, the Court exercised institutional restraint by granting Parliament a year to develop an appropriate legislative response, thereby respecting the separation of powers while ensuring that constitutional obligations are ultimately enforced. The decision, therefore, not only established marriage equality as a constitutional imperative but also demonstrated the Court’s balanced approach to protecting fundamental rights within the broader democratic framework. It remains a defining moment in the evolution of South African equality jurisprudence and the advancement of LGBTQ+ rights globally.
Bibliography
- Case law
Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2002] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).
- Legislation
Marriage Act 25, 1961.
- Constitution
Constitution of the Republic of South Africa.
