CIVIL UNION AMENDMENT ACT

(UPDATE – NOVEMBER 2020) 

On the morning of 1 July 2020, the National Council of Provinces adopted the Civil Union Amendment Bill (“the Bill”). The Bill proposes the removal of civil marriage officers’ right to conscientious objection.

The right to conscientious objection protects marriage officers employed by the state from being forced to preside over same sex marriage unions if it would violate their conscience or sincerely held beliefs.

Having been approved by Parliament, the Bill was sent to the President for final consideration. Cause for Justice (“CFJ”) wrote to the President, setting out the problematic procedural and substantive aspects of the Bill – and requesting him to send the Bill back to Parliament for reconsideration.

Despite the existence of serious and significant concerns, the President signed the Bill on 21 October 2020, and it became enacted – and commenced on the same day – as the Civil Union Amendment Act, 2020 (“the Act”).

DEMOCRACY AND DIVERSITY AT ‘WATERSHED’ MOMENT

The Bill has major implications for human rights in general as well as the rights to equality, human dignity and freedom of conscience, religion, and belief, in particular.

Properly understood, the right to conscientious objection is an important legal mechanism by which the values of South Africa’s constitutional democracy are upheld.

While the Constitution prohibits unfair discrimination, it also recognises the principle of reasonable accommodation,i whereby tolerance is allowed for people’s sincerely held beliefs.

In the matter of Minister of Home Affairs v Fourie,ii the Constitutional Court addressed the important issue of recognising and accommodating different intensely-held world views and lifestyles in the public square, calling it the “hallmark of an open and democratic society” and emphasising the need for “government to function in a way that shows equal concern and respect for all”.iii

It must be emphasized that the purpose of the conscientious objection clause is to protect the fundamental rights of state-employed marriage officers – and not to discriminate against same sex couples. The right to conscientious objection is not only constitutionally defendable, but also constitutionally desirable.

DEFENDING CONSCIENTIOUS OBJECTION – AND CONSTITUTIONAL VALUES – GOING FORWARD

When the Civil Union Act commenced, civil marriage officers did not automatically loose their right to conscientious objection. The Act contains certain “transitional provisions”. State-employed marriage officers who were granted an exemption to solemnising same sex marriage unions prior to the commencement of the Act, will retain their right to conscientious objection for 24 months after commencement of the Act (after which any exemption granted will lapse).

An important question arises as to what these marriage officers stand to do after 21 October 2022, as well as new or prospective marriage officers employed by the state after 21 October 2020.

In order to obtain clarity, CFJ has engaged the services of Senior Counsel to render a legal opinion on the likely impact of the Act on the fundamental rights of civil marriage officers who are religious and/or conscientious objectors.

[i] Minister of Home Affairs vs Fourie at paragraph [159].

[ii] Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).

[iii]Minister of Home Affairs v Fourie at paragraph [95].

CAUSE FOR JUSTICE

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