Public officials must treat all marriages equally


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.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

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

Related stories

Eusebius McKaiser: Reject the dichotomy of political horrors

Senekal shows us that we must make a stand against the loud voice of the populist EFF and racist rightwingers

Guinea’s choice will determine its future for generations

We need the eyes and ears of the international community to be alert to assaults on democracy as we run up to the election on 18 October

The pandemic will change the electoral process

There’s a backlog of by-elections to get through before next year’s local government elections. Will voters go to the polls even though Covid protocols are in place?

The economic effects of racism are more deadly than Covid-19

A recent report shows that racism has cost the US economy $16-trillion in growth over the past two decades. If the financial-services industry wants to show that Black Lives Matter, it needs to rethink how it allocates capital

Why we must fight to secure places for more women and young people in politics

Too often, governments talk the talk on gender equality, but fail to walk the walk

This is how Lungu is planning to rig Zambia’s 2021 general election

The president is trying to amend the Constitution and create a new voters’ roll in a bid to stay in power

Subscribers only

Toxic power struggle hits public works

With infighting and allegations of corruption and poor planning, the department’s top management looks like a scene from ‘Survivor’

Free State branches gun for Ace

Parts of the provincial ANC will target their former premier, Magashule, and the Free State PEC in a rolling mass action campaign

More top stories

Entrepreneurs strike Covid gold

Some enterprising people found ways for their ventures to survive the strictest lockdown levels

Ithala backs its embattled chairperson

Roshan Morar is being investigated in connection with KwaZulu-Natal education department backpack sanitiser tender worth R4-million and a batch of face masks that vanished

Inside the illicit trade in West Africa’s oldest artworks

Nok terracottas are proof that an ancient civilisation once existed in Nigeria. Now they are at the centre of a multimillion-dollar, globe-spanning underground industry — and once again, Nigeria is losing out

Emery Mwazulu Diyabanza: Liberating Africa from land of liberté

The cultural and political activist is on a quest to bring looted treasures back home

press releases

Loading latest Press Releases…

The best local and international journalism

handpicked and in your inbox every weekday