[104]It would be a strange reading of the Constitution that utilised the principles of international human rights law to take away a guaranteed right. This would be the more so when the right concerned was openly, expressly and consciously adopted by the Constitutional Assembly as an integral part of the first of all rights mentioned in the Bill of Rights, namely, the right to equality.
[105]I conclude that while it is true that international law expressly protects heterosexual marriage it is not true that it does so in a way that necessarily excludes equal recognition being given now or in the future to the right of same-sex couples to enjoy the status, entitlements, and responsibilities accorded by marriage to heterosexual couples.
The family law pluralism argument
[106]Much reliance was placed by the state and the amici on section 15(3) of the Constitution which, after guaranteeing freedom of religion, conscience and belief, and providing for the circumstances in which religion may be observed in state institutions, states:
“(a) This section does not prevent legislation recognising—
(i) marriages concluded under any tradition, or a system of religious, personal or family law; or (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. (b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.” (My emphasis.)
