President petitioned to send ‘unconstitutional’ Civil Union Amendment Bill back to parliament

By Freedom of Religion South Africa (FOR SA)

Freedom of Religion South Africa (FOR SA) has petitioned President Cyril Ramaphosa to exercise his constitutional prerogative to send the Civil Union Amendment Bill, adopted by the National Council of Provinces (NCOP) on July 1, back to the National Assembly for reconsideration.

The bill removes the right of state-employed marriage officers and magistrates to object — on the grounds of their sincerely held conscience, religion and belief (which rights are protected by section 15 of the Constitution) — to solemnising same-sex marriages.

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FOR SA highlighted serious concerns regarding the constitutionality of the bill. In particular, FOR SA pointed out that the bill is in direct conflict with Justice Sachs’ recommendation in the Fourie case, which legalised same-sex marriage in South Africa and gave rise to the Civil Union Act, 17 of 2006.

In his judgment, Justice Sachs recommended that state-employed marriage officers who have conscientious objections to solemnising same-sex marriages, could have their rights reasonably accommodated by the state. The “conscientious objection clause” contained in section 6 of the act – which will be removed by the bill – was parliament’s response to this very recommendation by the Constitutional Court. It is therefore incorrect to argue that section 6 amounts to “unfair discrimination” against same-sex couples.

“The Constitutional Court has confirmed on multiple occasions that there is no hierarchy of rights in our constitution, so legislation must find ways that respect and protect all fundamental rights”, says Michael Swain executive director of FOR SA. “The ct is an outstanding example of legislation where rights have been properly balanced. It extends equal rights to same-sex couples to have their unions legally recognised and registered, while at the same time recognising and protecting the religious freedom rights of state-employed marriage officers and magistrates.”

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In a detailed petition sent to the president, FOR SA pointed out that the bill is also unconstitutional because it fails to pass the Constitution’s limitations test contained in section 36. This test states that any limitation of a fundamental right must, among other things, be done in the least restrictive way. Given that viable, practical alternative solutions exist to resolve what is essentially a practical problem, the bill’s failure to limit state-employed marriage officers’ rights in the least restrictive way possible, makes it doubly unconstitutional.

In this regard, the Constitutional Court (in the Pillay case) has ruled that sometimes the state/employer has to take positive measures and possibly incur hardship/expense to allow all people to participate and enjoy their rights equally. In this case, FOR SA recommended that in the same way that circuit courts, mobile medical clinics and similar services are deployed to rural areas to ensure that everyone has access to state-supported services, state-employed marriage officers and magistrates who do not have a conscientious objection to solemnising same-sex marriages, could be sent on circuit to the various offices of the Department of Home Affairs (DHA) to assist same-sex couples. Equally, where the DHA identifies an area where there are insufficient marriage officers for purposes of solemnising same-sex marriages, it could give preference to job applicants who are willing/able to do so. In this way, the rights of same-sex couples are given effect, while reasonably accommodating the conscientious rights of state-employed marriage officers.

No public hearings
In its petition, FOR SA also raises concern that various requests for public hearings on the bill were ignored. Instead, parliament chose to limit input on the bill exclusively to written submissions, thereby removing the opportunity for members of parliament (MPs) to ask questions on the written submissions made, and/or to hear an alternative legal perspective to that presented to MPs by the Parliamentary Legal Services.

FOR SA respectfully submitted that parliament’s failure to grant public hearings in either the National Assembly or the NCOP has, in this instance, resulted in an undermining and/or a denial of the public’s right to a proper and participative democratic process.

FOR SA further observed that it does not make sense to amend the Civil Union Act through the bill at this time, since the DHA is already in the process of conducting a complete review of all the laws governing marriage in South Africa. This includes a full public participation process and it anticipates the formulation of a policy which will set the platform for the possible adoption of a single “Marriage Act”, governing all marriages of whatever kind entered into in South Africa.

“The bill is unconstitutional and therefore the president cannot legitimately sign it. We are simply asking the president to send this bill back to parliament because there are fundamental freedoms at stake,” says Swain. “The Constitutional Court has already ruled that no one should have to choose between obeying their faith (and potentially suffering eternal consequences if they do not), or obeying the law (and potentially losing their job if they do not). It would, therefore, be unconscionable for the state to place its ts own employees before this choice. Importantly, this bill is not only an assault on state-employed marriage officers’ rights – it is an assault on everybody’s right to be allowed to live in accordance with their sincerely held beliefs.”