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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.

It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples.On 24 August 2006, the Cabinet approved the Civil Union Bill for submission to Parliament.The bill as initially introduced would only have allowed civil partnerships which would be open only to same-sex couples and have the same legal consequences as marriage.It also included provisions to recognise domestic partnerships between unmarried partners, both same-sex and opposite-sex.

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The state law advisers, who screen laws for constitutionality and form, declined to certify the bill, suggesting that it failed to follow the guidelines laid down by the Constitutional Court.The five-judge court ruled unanimously that the common-law definition of marriage was invalid because it unconstitutionally discriminated on the basis of sexual orientation, and that it should be extended to read "Marriage is the union of two persons to the exclusion of all others for life." The court was, however, divided on the problem of the Marriage Act, which required a marriage officer to follow a formula which did not allow for same-sex marriage.

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