Parliament removes ‘conscientious objection’ after controversial bill rushed through

Parliament’s second House, the National Council of Provinces (NCOP), today adopted the Civil Union Amendment Bill. The effect of this Bill is to remove the “conscientious objection clause” in section 6 of the Civil Union Act, says Freedom of Religion South Africa (FOR SA) in a media release.

This will force State marriage officers and magistrates to solemnise same-sex marriages — potentially in violation of their conscience, religion and belief — or find alternative employment, says FOR SA.

Significantly, section 6 was included in the Civil Union Act as a result of the Constitutional Court judgment in the Fourie case. In this landmark case legalising same-sex marriage in South Africa, Justice Sachs clearly stated that “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”.

Various organisations (including FOR SA) made submissions to highlight the practical, alternative solutions to the problems identified, which would not require anyone to violate their conscience, notes the media release.

More concerning is the parliamentary briefing delivered by Parliamentary Legal Services (PLS), which presented MPs with a viewpoint that did not fully represent all the legal considerations and contained clearly biased legal interpretations, FOR SA says.

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It says the statement by Justice Sachs was deliberately overlooked or understated, as were strong appeals for a broader public participation process so that the democratic voice of the nation could be heard. However – and despite clear evidence that the bill is, in fact, unconstitutional – it now only requires the signature of the president before becoming law.

“It is regrettable that instead of looking for a ‘win-win’ solution that upholds all fundamental rights and allows for diversity of opinion and belief, Parliament has opted for a ‘winner takes all’ outcome,” says Michael Swain, executive director of FOR SA. “This is contrary to the spirit of our Constitution, which envisages a society where we are united in the celebration of our diversity.”

Another extraordinary factor is the unnecessary haste in pushing this Bill through onto the statute books. In 2019, the Department of Home Affairs (DHA) embarked on a major consultative process with a view to formulating a national marriage policy, says FOR SA. This policy will set the platform for the adoption of a single Marriage Act, consolidating and aligning the different pieces of legislation currently regulating marriage in South Africa.

Public hearings were conducted throughout South Africa and were well attended. The critical role of conscientious objection and the concern that this will be overlooked or marginalised, has formed a key part of the process to date because, for many, the institution of marriage has deep spiritual implications. Given that the Civil Union Act is one of the pieces of legislation under review, it is both bizarre and illogical that it is being amended at this time, says the media release.

“Many people are legitimately concerned that the passing of this bill into law will open the door to a world where people who hold traditional, conservative values will increasingly be forced to either compromise or face significant personal sanctions,” says Swain.

“The mantra of mutual respect used to be ‘live and let live!’, but it is being replaced by the elimination of every right to conscientious objection and belief except for those which the ‘politically correct’ endorse and support.”

Conscientious objection right upholds values of constitutional democracy — CFJ
In a press release Cause For Justice says while not all MPs voted in favour of the bill today, 33 members (representing roughly one-third of the MP’s in the NCOP and the majority of members who voted on the bill) still failed to recognise that the right to conscientious objection is an important legal mechanism by which the values of our constitutional democracy are upheld.

CFJ has consistently argued that a legislative framework that protects and promotes the rights of both same-sex couples and civil marriage officers who are conscientious objectors – which is exactly what the conscientious objection clause does – is to be preferred above any legal regime where either group’s rights are denied at the expense of others’ rights.

CFJ says it has also repeatedly pointed out that the current wording of the conscientious objection clause in the Civil Union Act is not problematic as it in no way denies same-sex couples the right to enter into a civil union. It is the implementation of the act – an administrative rather than a legislative matter – which needs to be addressed by the executive branch of government and the public administration, not the legislature.

CFJ states it will continue to follow the bill’s progress closely (including engaging the presidency) – “remaining committed to defend our constitutional democracy and laws that promote and protect the rights and freedoms of all South Africans and celebrate the rich diversity of her people”.

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Timing makes no sense — ACDP
In a media statement opposing the passing of the bill, the ACDP says it makes no sense to pass the amendment at this time since the Minister of Home Affairs, Aaron Motsoaledi, has announced that the department will be conducting an extensive marriage law and policy review, which would include the Civil Union Act.

The ACDP also says that the amendment flies in the face of views expressed by the Constitutional Court regarding conscientious objection for marriage officers to the effect that the state should seek to avoid forcing believers to choose between being true to their faith or respecting the law, and that the religious beliefs of the majority of South Africans should be taken seriously.