Same-sex marriage bill is tricky

ON DECEMBER 6, Parliament adopted into law the Civil Union Amendment Bill, which now compels Home Affairs marriage officers to officiate same-sex marriages, even though they may object to them on religious, moral or conscience-driven legal grounds.

It will now go to the National Council of Provinces for concurrence, which will be a mere formality before it, as the Civil Union Amendment Act, is sent to President Cyril Ramaphosa to be signed into law. Hitherto, Section 6 of the Civil Union Act, now repealed, permitted marriage officers to inform the minister that he or she objected to solemnising a civil union between persons of the same sex on the grounds of conscience, religion and belief.

Under the amendment, they will not be able to do this.

The amendment was sponsored by Cope’s Deidré Carter, who noted that it touched “upon the genesis of our constitutional order” as well as “that which (was) most sacrosanct” to the right to equality and dignity, as well as the right of people against being unfairly discriminated against by the state. She went on to note that the state had an obligation “to promote, respect and fulfil these rights”.

That then is the essence of what will become the law, probably early in the new year, once the regulations have been drafted and approved.

Simply put, it takes away the right of marriage officers in the employ of the state to refuse to officiate and register same-sex marriages.

It’s apposite to record that the National Freedom Party, the African Independent Congress and the African Christian Democratic Party were the only parties to object to the bill on the grounds that it offended against freedom of conscience and belief which are equally enshrined in the Bill of Rights to the Constitution.

Dilemma

The rationale behind this amendment is that, as an employee of the state, a marriage officer at Home Affairs cannot refuse to officiate and to register such marriages. This presents a dilemma to those officials in the civil service, 88% in total, who morally object to same-sex marriages.

There are at least two legal issues which impact on whether or not the amendment will pass constitutional muster.

The first and most important one pertains to constructive consultation with traditional and religious leaders in South Africa. This appears to have been overlooked – if I am reading the complaint from the dissenters.

The right to believe also includes the right not to believe and this right is taken away. You can’t force someone to do something he or she finds disagreeable.

Just as the right of the conscientious objector who refuses to take up arms during compulsory military conscription, the argument is that a similar right is allowed to those in the civil service who are designated as marriage officers.

The other important objection is that this amendment also constitutes a unilateral change of employment conditions, and therefore if a marriage officer refuses to perform his duties, he or she could face misconduct charges for, inter alia, refusal to obey a lawful instruction and be dismissed on the grounds of insubordination.

Whether those two issues render the amendment unconstitutional remains to be seen, but the dilemma faced by marriage officers pits two constitutional rights against each other.

There is a strong indication that a successful constitutional challenge could see the amendment being sent back to Parliament to allow those who object to the solemnisation and registration of samesex marriages the right to refuse, provided that they have reasonable grounds to do so.

After all, there are 18% of civil servants who still favour solemnisation and registration, and what the amendment seeks is to sweep away the right of those who feel and believe strongly on religious grounds.

What can be done is for a register to be opened which records those marriage officers who are prepared to solemnise and register same-sex marriages.

It’s probable that President Ramaphosa would exercise his prerogative to send the amendment back to Parliament to consider this option if his legal advisers feel that the amendment is too broad and irrational in its impact.

While it’s true that the state is obliged not to discriminate unfairly, the operative word being “unfairly”, compelling marriage officers to solemnise and register same-sex marriages could see a stand-off which will see our Constitutional Court having the final say.

The argument that just as a nurse in the employ of the state cannot refuse to treat patients with HIV or to clean up bed pans, etc, marriage officers cannot refuse to solemnise and register same-sex marriages.

Amendment

Furthermore, one should consider the words that marriage officers use in order to solemnise and register marriages.

Is this act anchored in religion? Or should marriage registration be religion-neutral?

Any law or amendment thereto has to include the rights that inform it.

There has to be a rational connection between that law and the infringement of the right.

There must be no alternative to the solution being addressed, and the infringement must not be over-broad.

These are some of the hurdles proponents of the amendment need to traverse, and it is my opinion that those who object to the law have legitimate concerns that need to be addressed and for a balanced outcome to be found.

Jazbhay is a practising attorney. He writes in his personal and private capacity.