PROTECTING MARRIAGE AND DIVERSITY IN A PLURALISTIC DEMOCRATIC SOCIETY(JUNE 2021)
The state has no legitimate interest in defining or imposing its views of what ‘marriage’ is on members of society – its only lawful concern (and accompanying duty) is to recognise and give legal protection to such relationships.
South African marriage law under review
The South African Law Reform Commission (SALRC/the Commission) is investigating the possibility of updating South African marriage law by adopting of a single piece of marriage legislation. The Commission is mandated to review South African law in order to identify and to make recommendations to address any obsolete, outdated or unconstitutional aspects.
In January 2021, the Commission published its Discussion Paper on Project 144 and invited stakeholders comments. In response, human rights organisation, Cause For Justice (CFJ/we) participated in a consultative stakeholder workshop hosted by the Commission during April 2021 and delivered written submissions in May 2021.
Determining the nature, meaning and purpose of marriage
It is important to keep in mind that marriage was not invented by lawmakers. This ancient and rich-with-meaning institution, originated in and developed through religious, cultural and social beliefs, traditions and practices – with which it remains intimately and intricately interwoven to this day.
Evidently, ‘marriage’ exists independently of the state and predates the state’s legal recognition of it. For this reason the nature, meaning and purpose of marriage is not something to be determined by the state.
Ensuring constitutional rights and freedoms are protected – and diversity celebrated
Cause For Justice focused its contribution to Project 144 on how diversity in terms of marriage – and marriage officers’ fundamental rights (such as dignity, equality and freedom of religion) – can be protected, even celebrated, in a pluralistic society such as South Africa. Commenting on aspects concerning different categories of marriage officers; the marriage formula; and the time, place and form of marriages, we put forward strong arguments in favour of allowing for a much broader variety of relationships that could potentially be given legal protection.
Different categories of marriage officers
In its Discussion Paper, the SALRC proposed to add a wide variety of different categories of marriage officers. This inclusion serves to recognise, protect and promote diversity by accommodating different religious, cultural and secular views on marriage. It also allows the state to reasonable accommodate marriage officers’ fundamental rights and freedoms – particularly the rights to human dignity; equality; and freedom of religion, conscience, opinion and belief – by allowing them to solemnise marriages in terms of their particular views and beliefs of what ‘marriage’ is.
Cause For Justice supported this proposal and further pointed out to the Commission that the right to be reasonable accommodated also applies to state-employed marriage officers. The mere fact that a person is employed by the state does and cannot mean that such a person automatically loses his or her individual constitutional rights – this would be a gross violation of human rights and a mockery of South Africa’s democratic values.
The spirit of the South African Constitution demands that no marriage officer should be forced to solemnise any marriage that does not accord with what he or she (or the institution they belong to) considers to be a marriage according to their particular doctrine and sincerely held personal beliefs.
We fully support the Commission’s proposal that the state has no interest in prescribing a specific marriage formula – i.e. that religious institutions and cultural organisations should be free to choose and approve their own marriage formulas.
Cause For Justice – as well as stakeholders from the religious sector – emphasised that the marriage formula is intimately personal and stands at the heart of particular religious institutions’ or cultural organisations’ views on ‘marriage’. Consequently, the state cannot prescribe what words must be uttered for a valid marriage to be concluded.
Time, place and form of marriages
The Discussion Paper proposed that marriage officers should be free to solemnise marriages at any time of the week; at any place; and in accordance with any mode of solemnisation and/or any religious or cultural practices. Cause For Justice supported this proposal as well, emphasising that this approach protects marriage officers’ rights and freedoms not to be forced to solemnise marriages in any manner or form that does not conform with their sincerely held views on marriage.
Deciding between ‘marriage’ and ‘protected relationships’
The Discussion Paper included two draft Bills allowing for two different ‘wording’ options:
The first option allows for the term ‘marriage’ to be used for all the relationships to which the state attaches legal protection; and
The second option makes use of the wording ‘protected relationships’ for relationships that enjoy legal protection.
Taking into consideration the diverging views different religious institutions and cultural organisations may have of what ‘marriage’ is, we indicated our preference for the more neutral and inclusive phrase ‘protected relationship’.
Cause For Justice considers using the word ‘marriage’ as an overarching term to describe any type of protected relationship, to be inappropriate and even dictatorial. We were careful to emphasise that using the terminology ‘protected relationship’ does not nullify the institution of marriage – it merely broadens the scope of what the law recognises as a ‘legally protected relationship’ beyond ‘marriage’ only.
The production and significance of the SALRC’s final report
The South African Law Reform Commission will now consider all the public comments it received and produce its final report of recommendations. This report will be presented to the Department of Home Affairs and carries substantial weight in the Department’s internal law-making process and in the development of any new legislation.
Taking a stand for South Africans’ constitutional rights and freedoms
Cause For Justice will monitor the progress of Project 144 and seek further opportunities to engage the Commission and others in order to ensure South Africans’ constitutional rights and freedoms are protected – in marriage and all other areas of law.