PRESS RELEASEResolving the Civil Unions / Conscientious Objection Conundrum
PRESS RELEASE BY CAUSE FOR JUSTICE: 26 APRIL 2018
* FOR IMMEDIATE RELEASE *
SUBJECT: RESOLVING THE CIVIL UNIONS / CONSCIENTIOUS OBJECTION CONUNDRUM
Cause for Justice has delivered written submissions to Parliament in response to the call for public comments on the Civil Union Amendment Bill, 2018 (“the Bill”). The Bill seeks to amend the Civil Union Act, 2006 (“the Act”) by proposing the deletion of the “conscientious objection clause”. The Act grants same-sex couples the right to have their relationships solemnised as legally recognised civil unions. The Act also grants marriage officers who are civil servants (i.e. employed by the Department of Home Affairs (“DHA”) or other branches of government), the right to object to and be absolved from solemnising same sex civil unions on the grounds of conscience, religion and/or belief, by submitting an objection notice to the Minister of Home Affairs.
Due to the current geographic distribution of marriage officers exercising their right of conscientious objection, same-sex couples are not able to have civil unions solemnised at each and every Home Affairs office (“HAO”) in South Africa, resulting in them not receiving delivery of a public service on equal footing with their heterosexual fellow citizens.
Currently, civil unions comprise less than 1% of the combined total of all marriages and civil unions, while around 27.8% of HAO have marriage officers who will solemnise same-sex civil unions. Accordingly, despite a large oversupply of marriage officers who are not conscientious objectors, the geographical distribution of such officials is problematic for service delivery to same-sex couples in certain areas.
The purpose of the conscientious objection clause is to protect the fundamental right to freedom of religion, opinion and belief of marriage officers. The purpose is not to discriminate against same-sex couples. While the Constitution prohibits unfair discrimination, it also recognises that not all discrimination is unfair. According to the Constitution, certain limitations of rights are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The Constitution requires that constitutional rights are balanced in manner that is fair and maximises the enjoyment of the rights of all persons. In this instance, the fundamental rights to equality and human dignity of same sex-couples have to be balanced/harmonised with the equally fundamental rights to equality, human dignity and freedom of religion, opinion and belief of civil servant marriage officers.
A solution that protects and promotes the rights of same-sex couples (to equal service delivery) and so too marriage officers who are conscientious objectors (right to exercise their freedom of conscience, belief and opinion in the performance of their work functions), is to be preferred above any other solution which may result in the denial of one group’s rights at the expense of the other’s rights.
The Constitution welcomes and celebrates diversity, including freedom of religion, in the public sphere. If the state ensures that civil unions can be solemnised at each HAO, through for example the implementation of a system of roving/visiting officials to offices where service delivery is currently lacking, all same-sex couples will receive the service delivery they are legally entitled to. In these cicumstances, the proposed deletion of the conscientious objection clause becomes obsolete, and marriage officers will still be protected from being required to perform duties that violate their conscience or sincerely held beliefs.
The state is obliged to reasonably accommodate the exercise of freedom of conscience, religion and/or belief by marriage officers, and by implementing appropriate practical solutions the DHA will be able to do away with the discrimination currently experienced by some same-sex couples, without extinguishing the right to conscientious objection. Possible practical solutions include:
- Making use of roving/visiting marriage officers to HAO where services currently are not being delivered;
- Redeploying marriage officers who do not have conscientious objections to offices where services currently are not being delivered; and/or
- Swapping out marriage officers between offices where services are delivered and offices where services are not being delivered, i.e. relocating marriage officers in accordance with the geographic need.
Cause for Justice supports laws and practical solutions that promote and protect the rights and freedoms of all persons and celebrate diversity.
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KINDLY NOTE that, since the above matter entails a delicate balance of fundamental rights of both same-sex couples and religious marriage officers, should you wish to publish an amended version of our press release, kindly contact us prior to doing so. This will allow us the opportunity to confirm that any amended version correctly reflects Cause for Justice’s position with regard to this matter.
For further queries, contact CFJ at:
Tel: 083 235 1511