Concern that same-sex marriage bill almost ‘done deal’

Freedom of Religion South Africa (FOR SA) has expressed concern that the proposed amendment of the Civil Union Act, which will force state-employed marriage officers to marry same-sex couples, appears to be a “done deal”.

“This is despite the fact that there are serious questions regarding the constitutionality of the Bill and before the necessary process of public input and participation into the Bill has been completed,” said FOR SA in a press statement released today.

Various news articles following the parliamentary briefing on the Bill by COPE MP Deidre Carter (who initiated the Bill), reported that it was “overwhelmingly backed” by MPs from all political parties (except for the ACDP, who do not support the Bill and were also not present at the briefing).

Carter was also reported as stating that “with the support and commitment of the members of the committee and co-operation of the department, I am confident that section 6 of the Civil Union Act will be expunged before the end of the term of this … parliament”, said FOR SA.

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In explaining next steps, Carter also indicated that it “may or may not include public hearings on the matter”.

Commenting on the outcome of the parliamentary briefing, FOR SA Legal Counsel Advocate Nadene Badenhorst said: “It is alarming that MPs across the board view the ‘conscientious objection clause’ as nothing other than homophobia.

“They make the exact mistake that the Constitutional Court warned against in the landmark case of Minister of Home Affairs v Fourie in 2005 (which legalised same-sex marriage), by ‘dismiss(ing) opposition to homosexuality on religious grounds simply as an expression of bigotry’.

“The Constitutional Court held that this was ‘wrong and unhelpful’. The reality is that the constitution protects freedom of conscience, religion and belief as a fundamental human right, and the state (including parliament) has a duty to respect, protect and fulfil this right as much as it does any other right in the constitution.”

Section 6 of the Civil Union Act (the so-called “conscientious objection” clause) gives state-employed marriage officers the legal right to refuse – on grounds of conscience, religion and belief – to solemnise same-sex marriages. Contrary to what was suggested at the parliamentary briefing, this clause was not a legal “oversight” or “blunder” on the part of the legislature. Rather, it was a deliberate effort on the part of the legislature to protect the religious rights of state-employed marriage officers following the Constitutional Court’s judgment in the Fourie case, said FOR SA.

In that case, the Constitutional Court expressly ruled that the State should ensure that civil marriage officers, who hold sincere religious objections to officiating same-sex marriages, should not be obliged to do so if this would violate their conscience.

“While we accept that there may be a legitimate problem that the Bill seeks to address (namely the difficulties that LGBT people are allegedly experiencing at some Home Affairs offices, particularly in rural areas, to have their same-sex marriages solemnized), we do not agree that removing the “conscientious objection clause” from the Bill is the right solution. This is neither constitutional, nor necessary”, said FOR SA Executive Director Michael Swain.

“The problem is a practical one, calling for practical solutions. We therefore agree with the Minister of Home Affairs’ earlier statement that what is required is not a legislative amendment, but rather better planning.”

Responding to Carter’s statement that the Bill “is in the interests of a very large part our society”, FOR SA pointed out that less than 1% of all marriages and civil unions registered in South Africa in 2016 were civil unions, and that it was disingenuous to suggest otherwise.

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Another argument made in favour of the removal of the “conscientious objection” clause, is that marriage officers, as civil servants, are not entitled to opt out of marrying couples on the basis of race, religion or culture so it is therefore wrong that sexual orientation should be the only exception. However, the reason why conscientious objectors will not marry same-sex couples is based entirely upon their sincere belief that “marriage” is reserved for a man and a woman, irrespective of the race, religion or culture of the spouses involved.

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