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In this respect, exclusion by silence and omission is as effective in law and practice as if effected by express language. Accordingly, taking account of the decisions of this Court, and bearing in mind the symbolic and practical impact that exclusion from marriage has on same-sex couples, there can only be one answer to the question as to whether or not such couples are denied equal protection and subjected to unfair discrimination.

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Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. Thus, it would not be sufficient merely to deal with all the practical consequences of exclusion from marriage. If they are, both the common law definition as well as section 30 1 must have the effect of limiting the rights contained in section 9 of the Constitution.

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There would be grave disadvantages to all concerned if the issues raised were to be decided in a piecemeal way. Consequently the applicants could not be married as required by the law. Marriage is thus taken seriously not only by the parties, their families and society, but by the state.

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