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The Government appealed the SCA's ruling to the Constitutional Court, arguing that a major alteration to the institution of marriage was for Parliament and not the courts to decide, while Fourie and Bonthuys cross-appealed, arguing that the Marriage Act should be altered as Judge Farlam had suggested.
In the meanwhile, the Lesbian and Gay Equality Project had also launched a separate lawsuit directly attacking the constitutionality of the Marriage Act, which was originally to be heard in the Johannesburg High Court; the Constitutional Court granted the Project's request to have it heard and decided simultaneously with the Fourie case.
They applied to the Constitutional Court for direct access, but this was denied on 31 July 2003; the court stated that the case raised complex issues of common and statutory law on which the SCA's views should first be heard.
Fourie and Bonthuys therefore appealed the High Court judgment to the SCA, which handed down its decision on 30 November 2004.
On 1 December 2005, the Constitutional Court handed down its decision: the nine justices agreed unanimously that the common-law definition of marriage and the marriage formula in the Marriage Act, to the extent that they excluded same-sex partners from marriage, were unfairly discriminatory, unjustifiable, and therefore unconstitutional and invalid.
In a widely quoted passage from the majority ruling, Justice Albie Sachs wrote: "The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew.
Justice Kate O'Regan dissented, arguing that these words should be read in immediately.
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