bald submission in its written submissions that there was justification, without advancing considerations different from those it had referred to in relation to unfair discrimination. Mr Smyth on the other hand, devoted considerable attention to the argument that justification existed for the discrimination even if it impacted harshly on same-sex couples. His key argument was that the purpose of the limitation on the rights of same-sex couples was to maintain marriage as an acknowledged pillar of society, and to protect the religious beliefs and convictions of many South Africans. The Marriage Alliance similarly contended that any discrimination to which same-sex couples were subjected was justified on the ground that the exclusion of same-sex couples from marriage was designed to protect and ensure the existence and vitality of marriage as an important social institution. There are accordingly two interrelated propositions advanced as justification that need to be considered. The first is that the inclusion of same-sex couples would undermine the institution of marriage. The second is that this inclusion would intrude upon and offend against strong religious susceptibilities of certain sections of the public.
[111]The first proposition was dealt with by Ackermann J in Home Affairs.[1] Referring to possible justification in relation to exclusion of same-sex life partners from benefits accorded to married couples under immigration law, he stated:
- ↑ Above n 44 at para 59.
(d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”
See Harksen v Lane NO and Others 1998 (1) SA 300 (CC) at paras 53–4; 1997 (11) BCLR 1489 (CC) at paras 52–3.
