Same-sex marriage challenge outlined

In papers filed with the Constitutional Court challenging a recent Supreme Court of Appeal ruling that same-sex marriages be declared legal, the Ministry of Home Affairs argues that the SCA erred in developing the common law in ‘a manner inconsistent with its obligations under Section 39 (2) of the Constitution’. A Sunday Times report says Section 39 (2) states that ‘when developing the common law or customary law, every court ... must promote the spirit, purport and objects of the Bill of Rights’ enshrined in the Constitution. The ministry also argues that the SCA erred in ruling that the extension of the common law definition of marriage to include same-sex couples could not be regarded as fundamentally changing the traditional understanding of marriage. The ministry says that if the Constitutional Court upholds the SCA decision, it will ask the Constitutional Court to suspend the order. This would allow the SA Law Reform Commission to complete its research involving same-s ex unions and submit a report to Parliament, when Parliament could pass ‘appropriate legislation’.