O’REGAN J and SACHS J
a place where “unlawful carnal intercourse” as defined in the Act takes place.
[102] It was the effect of these provisions read together which led the appellants to argue that
the overall purpose of the Act is constitutionally illegitimate, in that its purpose and effect are to
impose legal sanctions on any form of sexual intercourse outside of a heterosexual marriage.
This, it was argued, is constitutionally impermissible in that it is an attempt to legislate for a
particular moral code, inconsistently with the Constitution. It was argued that the state has no
business telling people what to do in private with their bodies or with their money. It should
punish crime, not sin. In support of this contention reference was made to a frequently quoted
observation in the Wolfenden Report into Homosexuality and Prostitution:55
“Unless a deliberate attempt is to be made by society, acting through the agency of the
law, to equate the sphere of crime with that of sin, there must remain a realm of private
morality and immorality which is, in brief and crude terms, not the law’s business.”
Reliance was also placed on the following words by Ackermann J in the Sodomy case:56
“The enforcement of the private moral views of a section of the community, which are
based to a large extent on nothing more than prejudice, cannot qualify as such a
legitimate purpose.”57
The argument was reinforced by reference to the observations made in Parliament in 1987
and 1988 when the Act was subjected to substantial amendment and to the Report of the
55
Above n 51 at para 61.
56
Above n 38.
57
Id at para 37.
68
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