A Confused Court: Equivocations on Recognising Same‐Sex Relationships in South Africa
| Published date | 01 September 2006 |
| Author | Grégoire C. N. Webber,Graham Gee |
| Date | 01 September 2006 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00611_1.x |
Appeal, had he considered this necessary in the interests of justice.
100
As he
pointed out,
101
English courts had previously generally regarded Privy Council
decisions as merely of ‘persuasive’ authority, but there had been some notable
exceptions to this approach; for example, in relation to the signi¢cance of the
decision of the Privy Council inThe Wagon Mound.
102
Judges may be particularly
likely to ignore the doctrine of precedent when they think that it would force
a party to go to the House of Lords in order to have a foregone conclusion
con¢rmed.
103
A Confused Court: Equivocations on Recognising
Same-Sex Relationships in South Africa
Graham Gee and Gre
Łgoire C. N.Webber
n
Today, the question for many democratic States is not whether, but rather how to
recognise same-sex relationships. As ever more legal systems grapple with this
question, the incremental extension of ‘spousal rights’ to same-sex couples
favoured in the late twentieth century is increasingly augmented by the search
for more holistic forms of legal recognition which better capture the intangible
qualities of marriage.After decades of more or less unsuccessful attempts tosecure
such recognition for same-sex relationships, the recent pace and extent of legal
change is remarkable. Since the ¢rst same-sex marriages were permitted in the
Netherlands in 2001, Belgium, Spain,Canada, and the stateof Massachusetts have
each recognised same-sex marriage.
1
Several other jurisdictions have introduced
registration schemes conferring, in varying strength, certain legal consequences
of marriage upon those same-sex couples who seek greater security for, and
recognition of, their relationships; the most recent example being civil partner-
ships in the United Kingdom. But the pace of recent developments belies the
complexity of what is an essentially normative question. Determining how best
to recognise same-sex relationships ^ in other words, identifying the extent and
100 [2004] EWHC622, [2005] Ch 119, [86].
101 ibid [81]^[86].
102 [1961]AC 388.
103 See n 10 0 abo ve, [ 85].
n
Brasenose College and Balliol College, Oxford.We thank Kate Hofmeyr and Janvan Zyl Smit for
their instructive comments.
1 For developments in Canada, see G. Gee and G. C. N.Webber,‘Same-Sex Marriage in Canada:
Contributions from the Courts, the Executive and Parliament’(2005) 16 KingsCollege LawJournal
132. For developments in Massachusetts, see G. Gee‘Same-Sex Marriage in Massachusetts: Judicial
Interplay between the Federal and State Courts’ [2004] PL 252. For the Netherlands, see
K.Waaldijk‘Small Change: How the Roadto Same-Sex Marriage Got Paved in the Netherlands’
in R.Wintemute and M. Andenaes (eds), Legal Recognition of Same-Sex Partnerships (Oxford: Hart,
2001)437.
Gee and Webber
831
rThe Modern LawReview Limited 2006
(2006) 69(5)MLR 819^842
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