Kate O'Regan

“ It does not seem to me that an order developing the common law, as ordered by the majority in the Supreme Court of Appeal, coupled with an order reading in the words “or spouse” to the relevant provisions of the Marriage Act would undermine the institution of marriage at all. This Court has noted on several occasions the important role that institution plays in our society. [11] Permitting those who have been excluded from marrying to marry can only foster a society based on respect for human dignity and human difference. ”

“ The corollary of this proposition, however, is not that this Court should not come to the relief of successful litigants, simply because an Act of Parliament conferring the right to marry on gays and lesbians might be thought to carry greater democratic legitimacy than an order of this Court. The power and duty to protect constitutional rights is conferred upon the courts and courts should not shrink from that duty. The legitimacy of an order made by the Court does not flow from the status of the institution itself, but from the fact that it gives effect to the provisions of our Constitution. ”

“ If as Sachs J correctly concludes, it is not appropriate to deny gays and lesbians the right to the same status as heterosexual couples, the consequence is that, whatever the legislative choice, it is a narrow one which will affect either directly or indirectly all marriages. ”