c) Equality and non-discrimination continued

Sexual orientation and same-sex marriage

In the prescribed case of Minister of Home Affairs v Fourie Sachs J for the majority had to consider whether the common law definition of marriage which defined this institution as the union of one man and one woman to the exclusion of all others (for life?), was compatible with the prohibition on discrimination on the basis of sexual orientation. The question of whether the marriage formula in the Marriage Act which referred only to "husband and wife" also fell foul of this guarantee, also came up for decision. Sachs J provides an extensive overview of the Constitutional Court cases dealing with sexual orientation discrimination. Why do you think the Court emphasis's the previous decisions? Could it perhaps be related to the fact that the decision was controversial and that the Court wanted to demonstrate that it was following previous precedent? Also note the following:

• Sachs J argues in the judgment that at the heart of equality must be an understanding that it protects "the right to be different". This right to be different means that we must stop making assumptions of what is normal and respect people across difference. All the judges of the CC agreed with this line of arguing. Do you think the Court is consistent in its support for the right to be different? What about the Jordan case and the Robinson case? What would be the consequences of the Court truly embracing this notion of difference?
• Sachs J dismissed the arguments from the amici which tried to show that marriage was special and that it was not possible to extend it to same-sex couples without fundamentally altering its character. Do you find his arguments persuasive?Sachs J says the religious convictions of some cannot be used to limit the rights of others. What are the consequences of such a statement?
• Ms Fourie and her partner still cannot get married despite winning the case because Sachs J referred the matter back to Parliament for further discussion and set a deadline for 1 December 2006 for a change to occur. Why do you think Sachs sent this matter back to Parliament? Might it have something to do with the controversial nature of the decision and the need to infuse it with more "democratic legitimacy"?

HIV and discriminaton on non-specified grounds

• In Hoffmann v South African Airways the Constitutional Court had to consider whether differentiation based on HIV status constituted unfair discrimination in terms of s 9(3) of the Constitution. HIV status is not included in s 9(3), so the Court first had to decide whether making distinctions between HIV positive people and others constituted discrimination or not. In an eloquent judgment by justice Ngcobo the Court affirmed that differentiation on HIV status did constitute discrimination. In the process the Court also endorsed the conventional wisdom about the nature of HIV and how it is transmitted and how it can be contained. When dealing with the question of whether the discrimination was unfair, the court was confronted with arguments about commercial concerns. SAA argued that it had to exclude HIV positive people from becoming air stewards because the passengers would not want to be served by such persons. Ngcobo rejects this argument stating "prejudice can never justify unfair discrimination". What are the consequences of this statement for other businesses who argue that they do not wish to discriminate on the basis of race, gender or sexual orientation, but that their customers prefer to be served by someone who are not gay or black or a woman? Do you agree with this approach? Will it have far reaching consequences for commercial life in South Africa?

In the case of Hoffmann v SAA how did the court go about to determine whether HIV status should be considered as a ground for unfair discrimination? In other words, what criteria did the court use to come to this conclusion? It is interesting to compare the decisions in Hoffmann with the one in National Coalition as the Court uses much of the same rhetoric. Do you think there is a particular reason why the Court uses the same language of "vulnerability", minority status etc in these two cases? When you read the case, make sure you also read the sections on the nature of HIV and when HIV positive people may be said to have AIDS. Do you think it is significant that the Constitutional Court has endorsed the view that HIV causes AIDS and that antiretroviral therapy can prologue a person's life and improve its quality, especially in the light of the present political debate about these issues? For more information about this topic, see the website of the Treatment Action Campaign