JURISPRUDENCE OF CONSTITUTIONAL COURTS IN SOUTH AFRICA AND AUSTRALIA ON SAME SEX MARRIAGE

Abstract

Thispaper examines the evolution and current legal status of same-sex marriage in South Africa and Australia,
highlighting key judicial decisions, legislative developments and their implications for LGBTQ+ rights. It provides a
comparative analysis of the constitutional and legal frameworks in these countries, focusing on how their respective
judiciaries have navigated issues of equality, dignity and non-discrimination. The paper discussed landmark cases
such as Minister of Home Affairs v Fourie in South Africa and Commonwealth v Australian Capital Territory in
Australia, which have significantly influenced the recognition and protection of same-sex relationships. It also
explored the social and political dynamics surrounding same-sex marriage, including public opinion, advocacy, and
the role of civil society. In doing these analyses, the paper adopted the doctrinal research methodology and analysed
primary and secondary sources of law. Based on the analyses of these sources, the paper offered lessons and
recommendations for Nigeria, considering its current stance on same-sex marriage and the potential pathways toward
achieving greater inclusivity and human rights protection for LGBTQ+ individuals. The paper recommended that,
Nigeria should consider amending its Constitution to explicitly prohibit discrimination based on sexual orientation,
as is done in South Africa.The paper also shows that the interplay between judicial decisions and legislative reforms
is crucial in achieving and solidifying these rights. For countries like Nigeria, these examples provide valuable lessons
on the potential for constitutional reform, judicial independence, and public advocacy to drive progress.