The Civil Union Act was a huge step forward for equality in South Africa, allowing same-sex couples to get married. But because of one “constitutionally unacceptable” proviso, couples are being turned away by the department of home affairs — prompting the introduction of an amendment Bill to Parliament last Friday.
The Bill aims to repeal section six of the Act, which allows department marriage officers to be exempted from officiating at same-sex marriages on the basis of religious belief or conscience. Of the roughly 1 130 designated marriage officers, 421 had been exempted.
The Bill was introduced by Congress of the People MP Deidre Carter, after it came to her attention that same-sex couples were being turned away from some home affairs offices, “particularly in rural areas”, because many marriage officers at those offices had been exempted.
Matthew Clayton, of queer rights organisation Triangle Project, said the exemption “has allowed government staff to openly discriminate against same-sex couples for over a decade”.
Carter said the Bill of Rights prohibits discrimination and Chapter 10 of the Constitution requires that public services must be provided impartially, fairly and without bias.
“It cannot be constitutionally acceptable or permissible that public servants can be exempted on any grounds from providing services to certain sectors of our society,” Carter said.
The Civil Union Act was passed in 2006, following a 2005 Constitutional Court judgment instructing Parliament to pass legislation allowing same-sex couples to get married. But, says constitutional law specialist Pierre de Vos, “the court said there must be an accommodation of both the secular and the sacred”.
“Putting it simply, any legislation passed should not force religious institutions to conduct same-sex marriages,” said De Vos.
The draft Bill — “a complete mess”, according to De Vos — was challenged by activists for not complying with the Constitutional Court judgment. But section six, one of the “problematic inclusions”, remained in what became the Act. “Whether the Constitutional Court ruling was misread or whether it was deliberately decided that this was not a human rights issue, but a moral one, I don’t know,” De Vos added.
The Democratic Alliance’s Zakhele Mbhele says the party is yet to take an official position on the Bill but “the argument underpinning the Bill is correct”.
Civil servants should perform their duties regardless of personal prejudices. “We wouldn’t accommodate a marriage officer who objected to interracial marriage … If a marriage officer feels they cannot do their job professionally and comprehensively, then they must rather relinquish their position,” he said.
The African Christian Democratic Party’s Kenneth Meshoe, however, said the party would “obviously be opposing the Bill” because it “sought to undermine and ‘kill the conscience’ of officials”.
“Many of the horrible abuses that take place in South Africa, including rape and sexual assault, is done by people whose conscience is either numb or dead.
“We, as a party, believe that if people’s consciences are active and well, they would refrain from doing wrong,” Meshoe said.
But De Vos says that, because the provision treats a matter of equality “as if it is a matter of moral choice”, there is a very strong argument that the provision is unconstitutional.
“Once a person becomes a marriage officer, he or she should not be allowed to discriminate while drawing a salary from the state, as this would imply that the state protects and even promotes sexual-orientation discrimination,” De Vos said.
Meshoe said it was the department’s duty to inform people which home affairs officers would officiate at same-sex unions. “This would help solve the problem,” he said.
The department said it would not comment because it had not yet been notified of the Bill.
Carl Collison is the Other Foundation’s Rainbow Fellow at the Mail & Guardian