Procedural Posture
The National Coalition for Gay and Lesbian Equality and the Human Rights Commission brought a lawsuit challenging the constitutionality of statutory and common law offences criminalising anal sex between consenting adult men (referred to as the “sodomy laws”). The High Court ruled the laws unconstitutional and invalid. The Constitutional Court reviewed the order of the High Court.
Issue
Whether laws criminalising sexual activity between consenting adult men violated the Constitution of South Africa.
Domestic Law
Constitution of South Africa, Section 9 (guaranteeing equality, and equal protection before the law, and prohibiting unfair discrimination including on the grounds of sexual orientation), Section 10 (dignity), Section 14 (right to privacy), Section 36(1) (providing in part that the rights in the Bill of Rights “may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”).
Comparative Law
Bowers v. Hardwick, United States Supreme Court, 1986 (upholding constitutionality of State law criminalising sodomy).
Romer v. Evans, United States Supreme Court, 1996 (finding unconstitutional a State constitutional amendment that withdrew a specific class of people – gays and lesbians – from the protection of the law without a legitimate State purpose, in violation of the equal protection clause of the federal Constitution).
R v. M(C), Ontario Court of Appeal, Canada, 1995 (finding that a higher age of consent for anal intercourse than for vaginal intercourse was discriminatory and violated Section 15(1) of the Canadian Charter of Rights and Freedoms).
Vriend v. Alberta, Supreme Court of Canada, 1998 (holding that sexual orientation was a ground analogous to those listed in section 15(1) of the Canadian Charter of Rights and Freedoms).
International Law
Dudgeon v. United Kingdom, ECtHR, 1981 (finding that the sodomy laws of Northern Ireland violated the right to privacy under the European Convention).
Norris v. Ireland, ECtHR, 1988 (finding that the sodomy laws of Ireland violated the right to privacy under the European Convention).
Toonen v. Australia, United Nations Human Rights Committee, 1994 (finding that the sodomy laws of Tasmania violated the rights to privacy and non-discrimination under the ICCPR).
Reasoning of the Court
Majority Opinion (per Justice Ackermann)
First the Court summarised the stages of a Section 9 discrimination inquiry. Because differentiation was on a specified ground (sexual orientation), discrimination was established. Unfair discrimination was therefore presumed, but the Court was still required to consider whether fairness had not been established. It did this by analysing the impact of the sodomy laws.
The Court held that the sodomy laws reinforced existing social prejudices and had a severe impact, “affecting the dignity, personhood and identity of gay men at a deep level”. Furthermore, the laws had “no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society”. Therefore the discrimination was unfair.
The main argument was that sodomy laws were inconsistent with the right to equality. However, the Court also considered the right to dignity, protected by Section 10. The constitutional protection of dignity required the Court “to acknowledge the value and worth of all individuals as members of our society”.
The sodomy laws punished “a form of sexual conduct which is identified by our broader society with homosexuals. Its symbolic effect is to state that in the eyes of our legal system all gay men are criminals.” But the harm was not just symbolic. Gay men were at risk of arrest, prosecution and conviction for engaging in “sexual conduct which is part of their experience of being human”. The Court found that punishing sexual expression “degrades and devalues gay men in our broader society. As such it is a palpable invasion of their dignity and a breach of section 10 of the Constitution.”
The Court emphasised that the privacy argument was as important as the equality argument. It defined privacy as physical space but also as a “sphere of private intimacy and autonomy” in which human relationships were nurtured without interference. “The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.”
Under Section 36(1), the Court considered whether the limitation was reasonable and justifiable “in an open and democratic society based on human dignity, equality and freedom”. Considering the factors listed in Section 36(1), the Court found the rights involved were very important and that the limitation represented a severe infringement. No valid purpose for the limitation had even been suggested. “The enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose.”
Moreover, nothing “in the jurisprudence of other open and democratic societies based on human dignity, equality and freedom” pointed in a different direction. Instead, there was “a definite trend towards decriminalisation”. The Court cited cases from the European Court and the United Nations Human Rights Committee. The United States, the Court observed, was an exception to this general trend. Nevertheless, the US case of Bowers v. Hardwick had been the subject of “sustained criticism” and more recently the US Supreme Court, in Romer v. Evans, had struck down an amendment to a State constitution that prohibited public measures designed to protect persons on the basis of their sexual orientation. The South African Constitution, unlike the US Constitution, contained express privacy and dignity guarantees as well as an express prohibition of unfair discrimination on the ground of sexual orientation.
“A number of open and democratic societies have turned their backs on the criminalisation of sodomy in private between adult consenting males, despite the fact that sexual orientation is not expressly protected in the equality provisions of their constitutions. Their reasons for doing so … fortify the conclusion which I have reached that the limitation in question in our law regarding such criminalisation cannot be justified” under the Constitution.
Concurrence (per Justice Sachs)
Justice Sachs framed the question as one about “the nature of the open, democratic and pluralistic society contemplated by the Constitution”. He began by asking whether it was the act or the person that was the target of sodomy laws and concluded that it was the person. The laws at issue failed the harm principle, under which conduct was only criminalised if it caused harm. “In the case of male homosexuality, however, the perceived deviance is punished simply because it is deviant.”
Because sodomy laws had the effect of making everything associated with homosexuality “queer, repugnant or comical”, the equality interest was directly engaged. “People are subject to extensive prejudice because of what they or what they are perceived to be, not because of what they do.”
Justice Sachs rejected the notion, proffered by the applicants, that the privacy argument was a “poor second prize”. He emphasised that equality and privacy could not and should not be treated separately. In this case, a single situation could “give rise to multiple, overlapping and mutually reinforcing violations of constitutional rights”. The violation of equality by the sodomy laws “is all the more egregious because it touches the deep, invisible and intimate side of people’s lives”.
Privacy was not just about the bedroom. As Justice Blackmun described in his dissent in Bowers v. Hardwick, privacy was not just a negative right to occupy a private space free from government intrusion. It was the right to make fundamental decisions about intimate relationships without penalisation.
Autonomy, Justice Sachs explained, meant more than “the right to occupy an envelope of space in which a socially detached individual can act freely from interference by the state”. Individuals were not “isolated, lonely, and abstract” figures. The Constitution: “acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. It is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves.”
Justice Sachs viewed equality and dignity as complementary principles. “The manner in which discrimination is experienced on grounds of race or sex or religion or disability varies considerably … The commonality that unites them all is the injury to dignity imposed upon people as a consequence of their belonging to certain groups. Dignity in the context of equality has to be understood in this light.” The sodomy laws, by denying “full moral citizenship in society because you are what you are, impinge on the dignity and self-worth of the group”. He referred to South Africa’s apartheid past. “At the heart of equality jurisprudence is the rescuing of people from a caste-like status and putting an end to their being treated as lesser human beings because they belong to a particular group.”
According to Justice Sachs, “the success of the whole constitutional endeavour in South Africa will depend in large measure on how successfully sameness and difference are reconciled”. Equality is not sameness or uniformity but rather acknowledgement and acceptance of difference. “What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are.”
Justice Sachs also addressed morality and argued for a morality based on the “deep political morality” of the Constitution’s Bill of Rights. “What is central to the character and functioning of the state … is that the dictates of the morality which it enforces, and the limits to which it may go, are to be found in the text and spirit of the Constitution itself.”
National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa (full text of judgment, PDF)