Cause For Justice founder and director Ryan Smit responds to the National Assembly’s passing of the Civil Union Amendment Bill which makes it impermissible for state-employed marriage officers to refuse to marry same-sex couples on grounds of conscience, religion or belief.
National Assembly adopts the Civil Union Amendment Bill (B11B-2018)
A majority of the political parties represented in the National Assembly adopted the Civil Union Amendment Bill on December 6 2018, with only the ACDP, AIC and NFP opposing it. This means that all of the larger parties, including the ANC, DA, EFF, IFP and the bill’s sponsor, COPE supported.
This represents a new low for the National Assembly, as they settle for a superficial interpretation of the constitution and succumb to the tyranny of identity politics and political correctness.
The expected casualties – freedom, the constitution and its grand ideal of diversity/plurality.
The bill will next move to the second house of parliament, the National Council of Provinces, for deliberation and to be voted on in 2019.
Bill’s proposal is unreasonable, unjustifiable, irrational and disproportionate to the shortcoming it aims to address
While acknowledging the potential good intentions behind the bill, we are unable to support the bill as it flies in the face of the society that the constitution envisions for our nation.
There are a number of alternative interventions available to the executive and public administration to address the current practically deficient service delivery to same-sex couples who require the solemnising of their unions.”
It is rarely necessary to subject the rights of one group in society to the rights of others and exactly because of the gravity of such an infraction, it should be avoided whenever possible.
The bill’s proposal to remove the conscientious objection clause for state-employed marriage officers is not one of those instances requiring the law to side with one group at the expense of another. There are a number of alternative interventions available to the executive and public administration to address the current practically deficient service delivery to same-sex couples who require the solemnising of their unions.
Oversupply of officers willing to marry same-sex couples
The proposal to remove the conscientious objection clause is accordingly unreasonable and disproportionate to the shortcoming it aims to address. According to the latest data, less than 1 % of registered unions (both marriages and civil unions) are same-sex unions. Approximately 63% of state-employed marriage officers are willing to solemnise same-sex unions and only 37% are conscientious objectors. There is accordingly a substantial oversupply of marriage officers willing to solemnise same-sex unions.
The ineffective service delivery (solemnising of same-sex unions) in some parts of the country is the result of the inefficient distribution of the 63% non-conscientious objectors – they are employed in only 28% of the Home Affairs Offices across the country.
72% of Home Affairs Offices are staffed by only conscientious objectors. The problem is accordingly practical/geographic in nature and can easily be addressed by pragmatic planning interventions, such as roving marriage officers and/or Home Affairs recruitment policy to appoint persons who are not conscientious objectors to offices where there is need, as and when new vacancies arise at these offices.
To remove the rights of conscientious objectors … would accordingly be irrational … because the fact that the law provides a conscientious objection is not the cause of the defective service delivery to same-sex couples.”
To remove the rights of conscientious objectors to live and work in accordance with their conscience, religious beliefs or convictions about the nature of marriage relationships, as a solution/measure to address the current practical problem would accordingly be irrational at its core. This is so because the fact that the law provides a conscientious objection is not the cause of the defective service delivery to same-sex couples.
Unconstitutionality of the bill
It can also not be defended or justified on constitutional grounds. The proposal in the bill suffers from a number of constitutional deficiencies, including:
- It both unfairly discriminates against conscientious objectors based on their section 9 (equality and non-discrimination) rights and unreasonably and unjustifiably limits their section 15 (freedom of conscience, religion and belief) rights.
- It attempts to abdicate the state’s responsibility to reasonably accommodate its employees’ aforementioned constitutional rights. Where the state is able to take reasonable steps to employ other measures to address defective service delivery, it should employ such less restrictive measures rather than removing existing rights protections from the law.
- It wrongly assumes that same-sex couples’ rights are more worthy of protection than the rights of conscientious objectors. The state has an obligation to respect, protect, promote and fulfil the rights of both and to treat both equally.
- Conscientious objection, whilst it may amount to discrimination, it does not amount to unfair discrimination. Discrimination is allowed in terms of section 9 of the constitution and the Equality Act – only unfair discrimination is prohibited by the constitution and by law.
… where it is possible for the state to deliver services to same-sex couples, whilst also reasonably accommodating marriage officers’ right to conscientious objection, it is duty-bound by the constitution to do so. “
Accordingly, where it is possible for the state to deliver services to same-sex couples, whilst also reasonably accommodating marriage officers’ right to conscientious objection, it is duty-bound by the constitution to do so. As we have shown, there are less restrictive means available to the state to address the current problem of defective service delivery to same-sex couples.
Cause for Justice made written submissions to the above mentioned effect to the National Assembly’s Portfolio Committee on Home Affairs in October, but was denied the opportunity – along with the rest of the South African public – to present its views at a public hearing before the committee.
In conclusion, it is not for the state to decide whether or not sexual orientation is more constitutive of the identity/human dignity of the same-sex attracted person, than the conscience/religious convictions of the conscientious objector is to his/her identity/human dignity. To make such a call, would result in tyranny and fly in the face of an open and democratic society based on the values of human dignity, equality and freedom.
The fact that a majority of the political parties represented in the National Assembly have approved of this tyranny, is both concerning and disturbing, although not unexpected – in a time characterised by unabashed identity politics and political correctness, lawmakers are increasingly settling for the way of least resistance, instead of making and upholding good laws.