Civil Union Amendment Bill – Parliament on Collision Course with ConCourt

On Tuesday, 28 August, the Parliamentary Portfolio Committee on Home Affairs adopted a motion of desirability for the Civil Union Amendment Bill as proposed by COPE MP Deidre Carter. The intention of this Bill is to remove the conscientious objection clause (section 6 of the Civil Union Act, 2006) which allows State-employed marriage officers to be exempted – on grounds of their conscience, religion and belief - from solemnising same-sex unions. The proposed removal of this clause is in direct conflict with the Constitutional Court’s statement in Minister of Home Affairs v Fourie (the case which legalised same-sex marriage in 2005). This landmark judgment precipitated the drafting and passing into law of the Civil Union Act, but it specifically stated 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”. Explaining the dangers of the Bill, FOR SA’s Legal Counsel, Adv Nadene Badenhorst, commented as follows: “Parliament’s support for the removal of section 6, which Parliament specifically wrote into law as a direct result of the Constitutional Court’s recommendation, is a severe infringement of State-employed marriage officers’ constitutional rights to dignity and religious freedom. The removal of section 6 willeffectively force these employees to choose between obeying their faith (with potential eternal consequences if they do not), and obeying the law (and potentially suffering disciplinary and/or other punitive sanctions if they do not).” As such, the removal of the conscientious objections clause could potentially see Parliament face another constitutional challenge in the event that the Bill is passed into law. “This is a case of a practical problem calling for practical solutions”, says FOR SA’s Executive Director, Michael Swain. “Where there are not enough marriage officers whose conscience allows them to solemnise same-sex unions, the Department of Home Affairs should consider the preferred hiring of persons who do not have such conscientious objections. The last thing Parliament should be considering is the violation of State employees’ rights to conscience, religion and belief, which it has a Constitutional duty to respect, protect and promote”. FOR SA has made a submission on the Bill, and also met with Deidre Carter MP to discuss our concerns and proposed solutions with regard to the Bill. We will continue to monitor this Bill very closely, including any further calls for public comment and/or hearings on the Bill. Please make sure to follow FOR SA’s website (forsa.org.za) in this regard.