PRESS RELEASE
HUMAN RIGHTS ORGANISATION TAKES STAND FOR ‘UNITY IN DIVERSITY’ AMIDST MARRIAGE LAW REFORM - 2 JULY 2021PRESS RELEASE BY CAUSE FOR JUSTICE: 2 JULY 2021
* FOR IMMEDIATE RELEASE *
SUBJECT: HUMAN RIGHTS ORGANISATION TAKES STAND FOR ‘UNITY IN DIVERSITY’ AMIDST MARRIAGE LAW REFORM
The Department of Home Affairs has taken up the momentous task of reforming South African marriage law. Given that South Africa is one of the most diverse societies in the world, the Minister correctly described this as a watershed moment for its democracy.
The Department’s Green Paper on Marriages in South Africa was published in May 2021, inviting the public to comment on its proposed policy interventions. It also hosted various stakeholder engagement opportunities, such as provincial consultative workshops and a national colloquium.
According to human rights organisation Cause For Justice, this is an opportunity to promote and celebrate the diversity of South Africa’s pluralistic society whilst simultaneously ensuring the protection of constitutional rights and freedoms.
Accommodating – and celebrating – diversity in marriage
In its written submissions on the Green Paper, Cause For Justice argues that ‘marriage’ is a deeply meaningful institution, intimately and intricately entwined with religious and cultural beliefs and practices. The implication is that the state cannot define what ‘marriage’ is – this is best left to religious institutions and cultural groups to determine for themselves. For this reason, Cause For Justice regards the state’s role as necessarily limited to recognising and attaching consequences to those relationships that objectively are worthy of legal protection.
Cause For Justice supports a marriage regime based on minimum state regulation and maximum recognition of diversity. It sees this as the best approach for advancing the constitutional values of human dignity and equality, and maximising the enjoyment of fundamental rights and freedoms, in a pluralistic democratic society.
The Constitutional Court has emphasised the importance of accommodating diversity on multiple occasions, observing that:
“the hallmark of an open and democratic society is its capacity to accommodate and manage difference of intensely-held world views and lifestyles in a reasonable and fair manner.” [1]
The reasonable accommodation of diversity implies that religious and cultural groups should be able to live in accordance with their beliefs and practices, without fear of reprisal. [2] Practically, this means allowing:
“different concepts about the nature of human existence to inhabit the same public realm … in a manner that is not mutually destructive and … enables government to function in a way that shows equal concern and respect for all.” [3]
During the public consultation on the Green Paper it became clear that, to millions of South Africans, their sincerely held beliefs – which inform their views on marriage – are not a trivial matter, but foundational to who they are and how they want to and able to life a meaningful life, and as such inseparable from their human dignity.
Protecting marriage officers’ fundamental rights and freedoms
According to Cause For Justice, the law must afford equitable recognition and protection to all marriage officers’ right to freedom of religion, belief and opinion in the context marriage solemnisation. [4] It argues that this constitutional objective can be achieved by applying the principle of reasonable accommodation and carefully balancing seemingly conflicting fundamental rights in the least restrictive way – ensuring the maximum enjoyment of constitutional freedoms by all persons.
Possible policy intervention options
The Department has put forward four policy intervention options for consideration in respect of the solemnisation and registration of marriages:
- Option (1): Indiscriminative solemnisation of marriages by all marriage officers without exception.
- Option (2): Indiscriminative solemnisation of marriages by public servants.
- Option (3): broadening of the scope for the designation of marriage officers from all social groups (i.e. all religious denominations, traditional councils and the LGBTIQ+ community).
- Option (4): Solemnising marriages without marriage officers.
According to Cause For Justice, Option (1) is constitutionally indefensible because it would force marriage officers to subordinate themselves to the religious and cultural norms of others. [5]
Option (2) disregards the principle of reasonable accommodation and fails to recognise and protect the basic human rights of state-employed marriage officers. Even though the state must provide services “impartially, fairly, equitably and without bias” to all people, this does not mean state employees can be equated with the state itself or forfeit their individual constitutional rights when entering state employ.
Options (3) expands the available different categories of marriage officers, providing all sectors of society with marriage officers able to solemnise marriages in accordance with the religious, cultural or secular views of that particular sector.
Option (4) reduces the ‘solemnisation of marriage’ to a state administrative function, and excludes the marriage officer from performing any ceremonial functions. [6] This approach is as ‘neutral’ as possible.
From a human rights perspective, Cause For Justice, regards only options (3) and (4) as acceptable. Options (1) and (2) will enable the violation of marriage officers’ fundamental rights.
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The Department of Home Affairs will now consider the public comments it received in respect of the Green Paper, and produce a White Paper setting out its official policy statement. The public will be afforded an opportunity to comment on the White Paper as well.
Cause For Justice will closely follow the progress of the Department’s marriage law reform process. It is committed to seizing opportunities to promote ‘unity in diversity’ by advocating for the protection of South Africans’ fundamental rights and freedoms.
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For further queries, contact CFJ at
Email: info@causeforjustice.org
Tel: 074 355 0775
END NOTES
[1] Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC) at para 95.
[2] MEC for Education, KwaZulu-Natal v Pillay 2008 1 SA 474 (CC) at para 72.
[3] Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC) at para 95.
[4] It must be understood that this fundamental right protects religious, cultural and secular beliefs and opinions.
[5] Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC) at para 61.
[6] Properly construed, merely a ‘registration’ of the fact that a marriage had taken place.