Sex 18 afrigha
In a dissenting opinion, Judge Ian Farlam stated that the marriage formula followed from the common-law definition and the court should update it; on the other hand, he was of the opinion that the order of invalidity should be suspended for two years to allow Parliament to adopt its own remedy for the situation.The Government appealed the SCA's ruling to the Constitutional Court, arguing that a major alteration to the institution of marriage was for Parliament and not the courts to decide, while Fourie and Bonthuys cross-appealed, arguing that the Marriage Act should be altered as Judge Farlam had suggested.The vote was repeatedly delayed as the Portfolio Committee on Home Affairs was still involved in discussions.In response to the argument that 'separate but equal' civil partnerships would not comply with the Constitutional Court's ruling, the Portfolio Committee amended the bill to allow either marriages or civil partnerships, and to allow them to both same- and opposite-sex couples.The Joint Working Group, a network of LGBTI organisations, described the idea of a separate marriage law for same-sex couples as "an apartheid way of thinking".
The bill as initially introduced would only have allowed civil partnerships which would be open only to same-sex couples and have the same legal consequences as marriage.
The five-judge court ruled unanimously that the common-law definition of marriage was invalid because it unconstitutionally discriminated on the basis of sexual orientation, and that it should be extended to read "Marriage is the union of two persons to the exclusion of all others for life." The court was, however, divided on the problem of the Marriage Act, which required a marriage officer to follow a formula which did not allow for same-sex marriage.