Public officials must treat all marriages equally

COMMENT

Public officials may no longer object to solemnising same-sex marriages and unions. This was the recent decision taken by the South African Parliament. The Civil Union Amendment Bill has now been sent to the president to be assented (final approval).It is a momentous decision, albeit long overdue, that does away with a significant obstacle to the equal treatment of same-sex couples and reinforces a central imperative of our constitutional design: public officials must treat everyone equally.

In Minister of Home Affairs v Fourie and Another, the Constitutional Court found it to be unfair discrimination to deny same-sex couples the same rights, responsibilities and status as opposite sex couples in marriage. At the centre of the dispute was section 30(1) of the Marriage Act which codified the common law definition of a marriage as “the legally recognised voluntary union of one man and one woman to the exclusion of all others”. 

After this judgment, the Civil Unions Act (CUA) was passed in order to extend legal recognition to same-sex marriages or civil partnerships. Although the CUA was undoubtedly a unique piece of legislation in light of the general disregard for lesbian, gay, bisexual, transgender and queer (LGBTQ+) rights on the African continent, it still made certain distinctions between marriages under the Marriage Act and those under the CUA. 

One of these was section 6 of the CUA, which provided that a marriage officer working for the department of home affairs may inform the minister, in writing, that he or she objects to conducting a civil union between persons of the same sex on the ground of conscience, religion, and belief. The purpose of this provision was to allow marriage officers to refuse to constitute a marriage or union between people of the same sex, based on their religious beliefs. 

In a country where legal recognition of same-sex marriage has, to some extent, preceded public acceptance, this section had the effect of, in certain cases, stripping same-sex couples of the opportunity to marry because of the unwillingness of some public marriage officers to officiate over their marriage ceremonies. That essentially defeated the purpose of the CUA which was enacted to allow same-sex couples to solemnise their unions. Moreover, it also perpetuated prejudice and unfair discrimination against same-sex couples in the public sector. 


Indeed, section 6 of the CUA, in my view, had the effect of subjecting same-sex couples to the beliefs of the state’s marriage officers in a manner that is not permissible for opposite sex couples. For example, a department of home affairs marriage officer could refuse to solemnise a union between a same sex couple, but could not decline to solemnise a union between an atheist couple, despite the fact that both unions could well offend against his/her religion. 

The inclusion of a conscientious objection clause relating to same-sex marriages specifically suggests that there exists a justifiable reason for civil marriage officers to object to solemnising same-sex unions. That reason is not, however, made clear and without doing so, the Act implies that same-sex relationships are in some manner inherently more objectionable than heterosexual relationships and thus different in status and worth. The pejorative message sent by the law reinforces the idea that same-sex relationships, as a class, merit differential and unequal treatment when juxtaposed against heterosexual relationships. 

As a result, several civil society organisations, lawyers and activists objected strongly to allowing civil marriage officers to decide which marriages to solemnise. Since the repeal of this provision was passed by the National Assembly almost two years ago, there had been a long delay before it was finally passed by the National Council of Provinces (NCOP) on July 1 this year. Importantly, in approving the Bill, the NCOP emphasised the importance of section 195 (1) of the Constitution which essentially requires equal and impartial treatment by public officials. 

It made the important statement that, in carrying out their public and official duties, public officials should be required to uphold and enforce the law in an impartial manner and not cast judgment on people who approach them to fulfil official functions. A public official is not a private actor — rather, they act on behalf of the state and are thus bound to honour and give effect to the principles enshrined in the Constitution. Turning a same-sex couple away on the basis of religious sensibilities, mistakes the actions of a public official for a decision by a private citizen. It is also uniquely hurtful and insulting of dignity as it appears to represent the views of the state. 

Freedom of Religion South Africa has argued that the repeal of section 6 constitutes an impermissible infringement on marriage officers’ religious rights by compelling civil servants to perform their duties in a non-discriminatory manner. The Constitution, however, is quite clear on the circumstances under which religious rights may be limited. Although the right to freedom of conscience, religion and belief is guaranteed in terms of section 15 of the Constitution, its exercise is not absolute. 

For instance, in the Strydom v. Nederduitse Gereformeerde Gemeente Moreleta Park case, the High Court had to consider whether it was permissible for a church to dismiss a gay music teacher on the basis of his sexual orientation. The court found that the effect of employing Strydom on the church’s religious freedom was minimal compared to the enormous effect on Strydom of the discriminatory behaviour (his dismissal). 

In my view, similar reasoning would be applicable in this case. A public official does not act in their personal capacity in solemnising a marriage and thus their religious beliefs are not relevant to the performance of this function. Any restriction on religious freedom would thus be permissible under our Bill of Rights. The repeal of section 6, in my view, represents a significant milestone in South Africa in removing unfair discrimination against same-sex couples and hopefully paving the way for substantive equality for LGBTQ+ people in South Africa. 


In an article published by the Mail & Guardian on August 4, Shaun de Freitas argues that marriage officers should have the right to object on religious grounds. Read it below.

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Ropafadzo Maphosa
Ropafadzo Maphosa is a PhD candidate in international law at the University of Johannesburg and a researcher for the South African Institute for Advanced Constitutional, Public, Human Rights and International Law at the university

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