Refer SA’s marriage Bill back to Parliament

SINCE Parliament’s adoption of the Civil Union Amendment Bill (“the Bill”) in July, various newspapers have published opinions by legal professors, legal advocacy groups and religious organisations on the constitutionality of the Bill.

I have been a Member of Parliament for the past 21 years and was a member of the Home Affairs Portfolio Committee which processed the Civil Union Act back in 2006. What I can say is that, although various aspects of the Civil Union Act were hotly debated in Parliament, section 6 (the “conscientious objection clause” which the Bill seeks to repeal) was not. Although many parties, including the African Christian Democratic Party (ACDP), voted against the Bill, this clause was unanimously accepted.

Parliament deliberately chose to write in the “conscientious objection clause”. The clause only affects State marriage officers (i.e. those specifically employed as marriage officers by the Department of Home Affairs, and those State employees who are automatically marriage officers by virtue of holding another office, such as our magistrates). It allows them to inform the Minister of Home Affairs in writing that they object, on the grounds of their conscience, religion and beliefs, to personally solemnising a civil union between persons of the same sex. The clause then prohibits the State from compelling that marriage officer to personally solemnise a civil union.

Parliament did not make a mistake by choosing to specifically write in the “conscientious objection clause”. It was not some omission or oversight. It was a very deliberate decision which Parliament took precisely because of the Constitutional Court’s judgment legalising same-sex marriage in the case of Minister of Home Affairs v Fourie (“Fourie”). In this judgment, the court gave Parliament exactly one year to write a law that allowed samesex couples to get married. The court also suggested 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” (paragraph 159 of Fourie).

The clause forces the State to “take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally” (as per the Constitutional Court’s description of reasonable accommodation in MEC for Education: Kwazulu-Natal and Others v Pillay, paragraph 73).

In other words, the “conscientious objection clause” not only prohibits the State from trampling on its employees’ constitutional rights, but also forces it to carry the burden and the responsibility of coming up with practical solutions to ensure that everyone – including both State marriage officers, and same-sex couples – are able to enjoy all their rights equally. Everyone, after all, is entitled to have their constitutional rights protected. Why the conscientious objection clause is not unconstitutional. Various opinions have voiced that the “conscientious objection clause” is unconstitutional because it discriminates against same-sex couples. However, clearly the Constitutional Court itself would not have recommended an unconstitutional remedy.

It is important to understand that it is not discrimination which is illegal in South Africa – only unfair discrimination. The principle of reasonable accommodation (which is that of coming up with solutions, even if it means an extra cost has to be incurred, to allow all people to enjoy their constitutional rights equally) pervades our law and has never been held to be unconstitutional. On the contrary, it has been affirmed in many judgments.

All South African marriage laws are currently under review. The Bill goes directly against the Constitutional Court’s judgment. Not only does it remove the remedy proposed by the court, but it fails to “replace the remedy with another legal arrangement that [meets] constitutional standards”. For this reason alone, it is blatantly unconstitutional and the President should not sign it into law.

As a senior parliamentarian, I also find the Bill extremely disturbing because it gives the State the power to ignore constitutional rights. This sort of power is very dangerous and should be anathema in our constitutional democracy. The clear and present danger is that eliminating the constitutional rights of State marriage officers will be the first domino that will spill over into all of society, and set a precedent for the erosion of other constitutional rights - rights that South Africans only won after a long and hard struggle. The ACDP will shortly be lodging a petition with the President to not sign this Bill, but rather refer it back to Parliament.