‘Parliament on collision course with ConCourt over same-sex marriage law’

When the Parliamentary Portfolio Committee on Home Affairs adopted a motion of desirability for the Civil Union Amendment Bill yesterday, it placed itself on a collision course with the Constitutional Court, says Freedom of Religion SA (FOR SA) in a statement released today.

The Bill aims to compel state marriage officers to solemnise same-sex marriages regardless of their religious convictions, by removing a conscientious objection clause that was written into the Civil Union Act, 2006 in line with a recommendation by the Constitutional Court.

In a statement in Minister of Home Affairs v Fourie (the case which legalised same-sex marriage in 2005 and precipitated the drafting and passing of the Civil Union Act), the Constitutional Court said “the principle of reasonable accommodation could be applied by the state to ensure that civil marriage officers who had sincere religious objections to officiating at same sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience”.

Explaining the dangers of the Civil Union Amendement Bill, FOR SA’s Legal Counsel, Adv Nadene Badenhorst, said: “Parliament’s support for the removal of section 6, which parliament itself specifically wrote into law as a direct result of the Constitutional Court’s recommendation, is a severe infringement of state-employed marriage officers’ constitutional rights to dignity and religious freedom.

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“The removal of section 6 will effectively force these employees to choose between obeying their faith (with potential eternal consequences if they do not), and obeying the law (and potentially suffering disciplinary and/or other punitive sanctions if they do not).”

The removal of the conscientious objections clause could potentially see parliament face another constitutional challenge in the event that the bill, is passed into law, says FOR SA.

FOR SA’s Executive Director, Michael Swain said:“This is a case of a practical problem calling for practical solutions. Where there are not enough marriage officers whose conscience allows them to solemnise same-sex unions, the Department of Home Affairs should consider the preferred hiring of persons who do not have such conscientious objections.

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“The last thing parliament should be considering is the violation of state employees’ rights to conscience, religion and belief, which it has a constitutional duty to respect, protect and promote”.

ACDP disagreement with motion
The ACDP placed on record yesterday, in a statement in the National Assembly, that it disagrees with the motion of desirability on the Civil Union Bill adopted by the Home Affairs committee.

“This bill is clearly being fast-tracked and we call on the public who have concerns to prepare to make submissions to the committee who will now have to embark on a public process before finalising and adopting the bill,” said ACDP MP Cheryllyn Dudley.

She said the ACDP expressed their concern in the committee yesterday but was not given an opportunity to ask the department if they have tried to address this problem by means other means, such as a special desk for civil unions staffed by persons employed specifically for this purpose.

“We are a society that professes to value freedom of choice yet we are becoming more and more selective about who gets to choose and who does not. We are using legislation to override people’s moral consciences, which smacks of methods used during the apartheid era.

“Our constitution protects freedom of conscience, religion and belief and members of parliament have a duty to see that people are not compelled to act against their conscience in the course of their work and that they are not discriminated against on these grounds.

“In the words of Family Action SA, ‘no one should be forced to accept a moral wrong, participate in it, or serve as an accomplice,’ ” Dudley said.

She said that while there seemed to be broad consensus in the department and the committee, the people of SA had not yet spoken and the ACDP believed that freedom of religion and belief was a concept shared and valued by most South Africans.

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“It should be noted that a significant number of South Africans are doubly concerned that this legislation is in fact part of a broader agenda that intends forcing churches and religious institutions to conduct civil unions — in the name of marriage — in their places of worship.

“More and more court cases are being used to harass religious bodies on this issue and their is huge suspicion that section 5 — which presently protects marriage officers of religious organisations — will be targeted in due course,” she said.