Freedom of Religion South Africa (FOR SA) notes with dismay that President Cyril Ramaphosa yesterday signed the controversial Civil Union Amendment Bill into law. The Bill, now known as the Civil Union Amendment Act, 2020 has come into immediate effect.
The Amendment Act removes the right of state-employed marriage officers and magistrates to object — on grounds of their sincerely-held conscience, religion and belief (which are protected by section 15 of the Constitution) — to being personally forced to solemnise same-sex marriages. The Amendment Act fails to replace it with another remedy that meets constitutional standards.
In light of the serious concerns regarding the constitutionality of the Bill, as well as the public controversy surrounding it, FOR SA petitioned the president to exercise his constitutional prerogative to refrain from signing the Bill into law, but rather refer it back to Parliament for reconsideration.
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 and resulted in the Civil Union Act, 2007 (which the Amendment Act now amends). In his judgment, Justice Sachs recommended that state-employed marriage officers who have conscientious objections to personally solemnising same-sex marriages, could have their rights reasonably accommodated by the state.
The “conscientious objection clause” which was contained in section 6 of the Civil Union Act was Parliament’s response to this very recommendation by the Constitutional Court. It has now been removed by the Amendment Act however, without replacing it with another legal arrangement for state-employed marriage officers to have their fundamental rights respected and protected.
The Bill also caused a great deal of public controversy, with many legal academics and also parties directly affected by the law, highlighting various aspects of the Bill’s unconstitutionality and its failure to find a way to respect and protect all fundamental rights, as required by the Constitution. (See, for example, here, here, here, here, here and here .)
“The Amendment Act is draconian in that it gives the state the power to force people to do things that go against their conscience — this when there were many practical alternatives (to violating people’s fundamental rights) available to the state”, says Daniela Ellerbeck, legal advisor to FOR SA.
“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 is unconscionable for the State to place its own employees before this choice. This law is an assault on everybody’s right to live in accordance with their sincerely held beliefs.”