Lesbian and Gay Equality Project and Eighteen Others v. Minister of Home Affairs

The issue in this case was whether the fact that no provision was made for same-sex couples to marry denied those parties equal protection of the law and was thus unfairly discriminating against them because of their sexual orientation, contrary to the Constitution’s protection of sexual orientation. The common law and the Marriage Act 25 of 1961 defined marriage as between man and woman. The Court stated that the exclusion of same sex couples from the benefits and responsibilities of marriage was not a “tangential inconvenience” but a “harsh … statement by the law that same-sex couples are outsiders.” The Court held that the common law and §30(1) of the Marriage Act were inconsistent with §§ 9(1) & (3) of the Constitution to the extent that they did not allow same sex couples to enjoy the status, entitlements, and responsibilities that heterosexual couples enjoyed. The Court held that Parliament should remedy this exclusion and, if it does not, courts should read §30(1) of the Marriage Act to include the words “or spouse” after the words “or husband” as they appear marriage vows.