/ 22 August 2020

To object or not to object is a human right

The challenge to the constitutionality of section 162 of the Penal Code was brought before the court by Kenyan human rights activists.
Kenyan students who are presumed to be gay are often kicked out of school, but queer activists are putting this practice on notice. (AFP)


Concerned magistrate*

I write in response to Ropafadzo Maphosa’s article in the Mail&Guardian (“Public officials must treat all marriages equally” August 4). I am a magistrate but cannot reveal my identity here for fear that amendments to current laws could put my job in jeopardy.

I have been a magistrate within the South African judiciary for the past almost 21 years, uninterrupted. I am a devoted Christian but I have also, upon taking up my position as magistrate, taken an oath of office to uphold the Constitution and dispense my duties without fear, favour or prejudice. 

I am concerned about recent developments surrounding the Civil Union Act, 17 of 2006 (the Act) and in particular an amendment to section 6 thereof which deals with conscientious objections. I hold the biblical view that marriage is intended to be between one man and one woman. I also hold the view that such belief is a central tenet to my faith and in my view it enjoys constitutional protection. That being said, it is also a central tenet of my faith to love God first and also to love my neighbour as I love myself. 

The National Council of Provinces (NCOP) has recently adopted the Civil Union Amendment Bill (the Bill) which brings about an amendment to section 6 of the Act. The Bill repeals the so-called “conscientious objection” clause in section 6 of the Act which provides as follows: ‘A marriage officer… may in writing inform the minister that he or she objects on the ground of conscience, religion, and belief to solemnising a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnise such civil union.” 

The Act defines a marriage officer to mean: “(a) a marriage offıcer ex offıcio or so designated by virtue of section 2 of the Marriage Act; or (b) any minister of religion, or any person holding a responsible position in any religious denomination or organisation, designated as marriage offıcers under section 5 of the Act.”

In terms of section 2 of the Marriage Act, 1961 (Act No. 25 of 1961) (Marriage Act):

“(1) Every magistrate, every special justice of the peace and every Commissioner shall by virtue of his offıce and so long as he holds such offıce, be a marriage offıcer for the district or other area in respect of which he holds offıce.

(2) The Minister and any offıcer in the public service authorised thereto by him may designate any offıcer or employee in the public service or the diplomatic or consular service of the Republic to be, by virtue of his offıce and so long as he holds such offıce, a marriage offıcer, either generally or for any specified class of persons or country or area.”

The aim of the amendment seems to be not to allow persons who are designated as marriage officers in terms of the Act (and seemingly by implication magistrates who are ex officio marriage officers) to object to solemnise same-sex marriages, even if it goes against their conscience, religion and beliefs (which is protected by section 15 of the Constitution). 

Such an amendment poses, in my view, a problem for the magistrate who wishes to object to solemnise such a marriage, and in particular me. I embrace, profess and order my life, including family life and how I raise my children, in line with the Holy Bible. Living in such a way I believe is also a fundamental human right entrenched in the Constitution. 

These human rights including the free expression of one’s opinion, belief or thought are freedoms which are not to be interfered with lightly just because it is at variance with the views of others. Furthermore, section 9 of our Constitution’s Bill of Rights protects everyone from being unfairly discriminated against on several grounds. These include (among others) “conscience”, “religion” and “belief”.

The right to freedom of religion has been defined by the Constitutional Court as “The right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination…” S v Lawrence & Others versusThe State & Another (1997)

Its importance was further affirmed in the Fourie case (which legalised same-sex marriage in South Africa, and lead to the passing of the Civil Union Act), when the Court said: “For believers, then, what is at stake is not merely a question of convenience or comfort, but an intensely held sense about what constitutes the good and proper life and their place in creation.” 

I foresee that should this amendment be signed into law by the president it will make exercising of a magistrate’s duties untenable, especially with the possibility of sanction should the magistrate refuse to solemnise such a same-sex marriage on request. 

Just as the civil servant who is designated as a marriage officer but objects to solemnise such a marriage because of his beliefs, such as myself, could possibly lose his or her job because of such refusal, so could a magistrate who refuses based on his beliefs possibly face disciplinary steps and could possibly be suspended by Parliament. 

The amendment seems to create a hierarchy of rights with the right to not be unfairly discriminated against on grounds of one’s sexual orientation trumping all other rights. This is contrary to various judgments from our apex Constitutional Court. In the Supreme Court of Appeal judgment in the Qwelane case, the Court stated that we do not have a hierarchy of rights with one trumping another.” 

In his judgment in the Fourie case, Justice Sachs — while affirming the rights of same-sex couples to have their union formally and legally solemnised  — said that “the principle of reasonable accommodation could be applied by the State to ensure that civil marriage officers who had sincere religious objections to officiating at same-sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience.”

From the quote above by Sachs J, I am convinced that by amending section 6 of the Act and not making reasonable accommodation for those magistrates who object not to be forced to perform such solemnisation will amount to a violation of their conscience. 

I am particularly concerned for those Christian magistrates or any magistrate who may hold such conviction as I do, in your “one-horse” towns where there is no department of home affairs office and who might be asked to perform a same-sex marriage against their will. Magistrates, not just because of their office but as citizens of this country, are entitled to have their constitutional rights fully protected. 

The literal compulsion to solemnise same-sex marriages will in my view definitely apply to ex officio magistrates. The net effect, over time, will be to discourage people of faith (or with conservative views) from entering into the judicial system as a career choice, which in turn will lead to an unbalanced “worldview” throughout our Courts.

I am of the view that other ways may be found to address the issue other than an amendment.  The department of home affairs could simply employ more persons to perform such marriages or deploy officers to towns where and when a need arise to solemnise a same-sex marriage. From a magistrate’s view they could be authorised to appoint a marriage officer at a certain court to perform such marriages even if only for a specific day and time on an ad hoc basis. Magistrates of a district for example are allowed, in terms of the Magistrates’ Court Act, to appoint clerks of the court for a specific purpose.

Finally, I object to such an amendment as it is in variance to my rights in terms of sections 9, 15 and 16 of the Constitution. I fear magistrates will be sanctioned for refusing to solemnise a same-sex marriage should this amendment be signed into law. 

I pray that sanity prevails. 

*The identity of the author is known to the Mail & Guardian

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.