Albie Sachs wrote the ruling that opened marriage to same-sex couples in South Africa

Person: Albie Sachs
Lived: b. 1935
Field: Human rights law, constitutional justice
From: South African

The story

Albie Sachs was born in Johannesburg in 1935 to Lithuanian Jewish parents who had fled persecution in the Russian Empire as children. He spent his youth fighting apartheid as a lawyer, endured solitary confinement without trial, went into exile, and in 1988 lost his right arm and the sight of one eye to a car bomb planted by South African agents in Maputo. In 1994 President Nelson Mandela appointed him to the new Constitutional Court, set up to protect the rights in South Africa's democratic constitution.

Both the interim Constitution of 1994 and the final Constitution explicitly forbid unfair discrimination on the basis of sexual orientation. Yet South African marriage law, drawn from old Roman-Dutch common law, still defined marriage as the union of one man with one woman, and the Marriage Act required couples to take each other as husband or wife. Marié Fourie and Cecelia Bonthuys, a lesbian couple who wanted to marry, took their case through the courts, joined by the Lesbian and Gay Equality Project.

On December 1, 2005, the Constitutional Court ruled in Minister of Home Affairs v Fourie. The court asked Sachs to write the judgment. All of the judges agreed that leaving same-sex couples out of marriage violated their rights to equal protection of the law, to freedom from unfair discrimination and to dignity. Sachs explained that the Constitution protects the right to be different and that, while religion plays an important role in public life, it would be out of order to use the religious beliefs of some as a guide to the constitutional rights of others. By a majority, the court gave Parliament one year to fix the law, with a remedy that would take effect automatically if it did not. Justice Kate O'Regan would have changed the law immediately.

Parliament responded with the Civil Union Act, which came into force on November 30, 2006. South Africa became the fifth country in the world to recognize same-sex marriage. In a 2009 interview Sachs summed up the court's view: to deny people the right to celebrate their love, affection, intimacy and mutual support simply because they love someone of the same sex violated the equality clause.

The judgment also rests on a wider idea that runs through Sachs's work: South Africa has many kinds of families, its Constitution marks a break with a past built on intolerance and exclusion, and a society based on equality and respect by all for all must make room for people to be different.

Why it matters

Thanks to the Fourie ruling, same-sex couples in South Africa can marry and receive the same legal status, protections and responsibilities as any other married couple.

About Albie Sachs

Anti-apartheid lawyer who survived a 1988 car bomb, helped prepare South Africa's democratic constitution and, as a judge, wrote the ruling that opened marriage to same-sex couples.

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Albie Sachs

b. 1935 · Human rights law, constitutional justice

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