Parliament’s second House, the National Council of Provinces (NCOP), today, 1 July 2020, 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. This will force State marriage officers and magistrates to solemnise same-sex marriages – potentially in violation their conscience, religion and belief – or find alternative employment. 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 Freedom of Religion South Africa – “FOR SA”) made submissions to highlight the practical, alternative solutions to the problems identified, which would not require anyone to violate their conscience. 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. 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. 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.
“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.”
– Press release by FOR-SA