In a blog post on the Freedom of Religion South Africa website, executive director Michael Swain
Introduction:
FOR SA is aware that the Marriage Bill (which is currently open for comment until 31 August 2023) is garnering much interest, specifically from faith communities. We recognise that faith communities may have concerns about the Bill that are far broader than FOR SA’s very specific and narrow mandate, which is to protect and promote the constitutional right to freedom of conscience, religion, thought, belief and opinion (“freedom of religion”). Simply put, this is the right to believe what you want to believe and to live that belief out freely in public, even if others think your beliefs are “bizarre, illogical or irrational to others, or are incapable of scientific proof”. It is also the right not to be forced to do anything contrary to your beliefs (commonly referred to as the “right to conscientious objection”). As a legal advocacy organisation we are necessarily faith, doctrine, ideology and politically neutral.
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FOR SA’s only lens is a religious freedom one:
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As we examine the Marriage Bill, the only perspective FOR SA can give is through the lens of the right to religious freedom.
1) Are people free to marry according to their own faith and beliefs?
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2) Will anyone (either the parties getting married or the marriage officer) be forced to do anything that is contrary to own their faith and beliefs?
The current legal context:
The purpose of the Marriage Bill is to bring together into a single statute, the different laws that currently govern marriage in South Africa and which already cater for different types of marriage relationship. A reform of the fragmented marriage law regime was needed because certain marriages were not recognised by the State – such as Islamic marriages that were only concluded according to religious rites and not subsequently registered in terms of any one of the laws. As a consequence, when such a marriage dissolves because of either death or divorce, the surviving spouse and/or children are unprotected by the law and left vulnerable.
It is also important to note that the Civil Union Act, 2006 contains a gender-neutral formula (see sec 11) and allows parties to decide whether they want their union to be known as a marriage or a civil partnership (see sec 11 of the Act, and specifically sec (11)(1)). There is also the Recognition of Customary Marriages Act, 1998 that legalises polygamous marriages.
A major religious freedom battle was waged over the Civil Union Amendment Act, 2020 which removed state-employed marriage officers’ right to conscientious objection. This included Department of Home Affairs employees who are employed as marriage officers and even Magistrates. Currently, religious marriage officers who have their marriage license issued under the Marriage Act, 1961 still have the right to conscientious objection. This license does not allow them to perform a marriage ceremony for example, a same-sex couple, for which a license must be issued under the Civil Union Act.
Understanding the current process:
In an attempt to resolve these fragmented marriage laws have created, the State began with a process to develop a policy (which culminates in a White Paper, which sets out the official government policy position of the State on the given issues). The development and finalisation of the policy was subject to a public participation process and followed by a proposed law (i.e. the Marriage Bill). The development of the Bill is also subject to a public consultation and participation process, commencing with the Department of Home Affairs’ draft of the Bill, which is currently open for comment until Thursday, 31 August 2023. Thereafter, the Department will consider the input it has received, and possibly make amendments to the current Bill, whereafter it will table the Bill in Parliament. In Parliament, the Bill has to pass through both Houses – the National Assembly (NA) and the National Council of Provinces (NCOP), each of which will conduct a public consultation process. Only after being passed by both houses of Parliament and signed by the President, will the Marriage Bill become law and will the other existing marriage laws all be repealed (see Schedule 2).
It is important to note that, in terms of this process, the Department originally published a draft policy (the Green Paper) for public comment concerning which position it should take in dealing with the various problems surrounding marriages. In this Green Paper, various options were proposed for how to deal with marriage officers. One of the proposals received from stakeholders proposed that Religious Marriage Officers should be forced to solemnise all marriages, irrespective of whether or not such unions were in line with their or their religious organisations’ faith and beliefs (see page 24 of the Green Paper). For example, a Roman Catholic priest could have been forced to marry an excommunicated divorcee. This was a massive concern for FOR SA because it would have fundamentally eroded religious freedom. Churches would have lost the ability to decide what they believe the Bible says marriage is, including pastors’ right to not be forced to do anything against their faith.
Thankfully, as a result of the public’s engagement with the Department on the draft policy, the Department’s final policy, titled the White Paper on Marriage in South Africa, solved this problem by recommending the expansion of the category of who can apply to become a marriage officer. This means that no one should be forced to do anything that goes against their conscience, religion or belief. It further recommended that state-employed marriage officers will not perform any ceremonial (i.e. religious) functions generally associated with the solemnisation of a marriage.
FOR SA viewed the final version of the policy as a big win for religious freedom because people are free to marry according to their faith and no one will be forced to do anything that is contrary to their faith.
The Marriage Bill:
The first version of the Marriage Bill has now been published by the Department for public comment. The Bill proposes, amongst other things, the minimum requirements for a marriage to be concluded (age, consent and legal capacity); expands who can be a marriage officer (allowing anyone holding a responsible position in an organisation to apply); makes provision for a marriage officer to solemnise a marriage in accordance with any practice (and therefore does not contain a marriage formula); and recognises all existing marriages even if they were not included in terms of the fragmented laws. When it comes to polygamous marriages, these remain between a husband and wives, with the husband having to obtain his existing wives’ consent before taking another wife etc.
This draft will likely be changed after public consultation is completed and before it is tabled in Parliament, whose two Houses will respectively open it up for comment again. FOR SA’s opinion – from a religious freedom perspective – is that this first draft Bill is good (although not perfect), precisely because it captures the policy position set out in the White Paper. It does not expressly force religious marriage officers to solemnise unions that go against their faith (which was a big threat).
Nevertheless – and to ensure that the right to religious freedom in the Bill is properly respected, strengthened and upheld, FOR SA is proposing the following changes:
1) The inclusion of a clause that expressly protects the religious freedom of Religious Marriage Officers (i.e. pastors, imams etc. who do not work for the State and voluntarily hold marriage licences) and the religious organisations (e.g. churches, mosques, temples etc.) to whom they belong. This will ensure that the Bill complies both with the Constitution and international law.
2) That the Bill be clarified to expressly states that Civil Marriage Officers will not be obliged to perform any ceremonial (i.e. religious) functions generally associated with the solemnisation of a marriage.
3) And changes to certain clauses to avoid a potential problem and confusion in the current draft of this Bill, which could unintentionally criminalise religious leaders who solemnise the religious ceremony only (and not the legal aspect of the marriage).
FOR SA continues to encourage everyone to have their say on the Bill before Thursday, 31 August 2023.
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