By Advocate NadeneBadenhorst, Legal Counsel of FOR SA
A ministerial dialogue with religious leaders took place inJohannesburg on 26 September, and in Cape Town on 23 October, to discuss the developmentof a marriage policy in South Africa. Both events were well attended andparticipated in by hundreds of religious leaders from across the faithspectrum, with Freedom of Religion South Africa (FOR SA) participating in bothevents.
The purpose of the proposed policy is to pave the way for asingle marriage law that would consolidate all the different laws thatcurrently regulate the different kinds of marriages in South Africa, and alsodeal with the marriages that are currently not regulated by any law, into onepiece of legislation. (For more about the purpose of and reasons for theproposed marriage policy, see our previousarticle and videoclip).
In both Johannesburgand Cape Town, the Minister of Home Affairs (Dr Aaron Motsoaledi) addressedreligious leaders with regard to the proposed policy and answered (some of)their questions. He explained that the policy would recognise that as SouthAfricans, we live in a diverse society where people have different cultures,religions and gender orientations. As such, the policy would give effect to theconstitutional principles of equality, “no discrimination” and human dignity.
Implications forreligious marriage officers
At both events, it was evident that a major question andconcern for many religious leaders from across the faith spectrum, was whethergovernment would – through the new policy, and ultimately the new marriage law- force religious marriage officers to solemnise unions or marriages that donot accord with their religious convictions and beliefs (e.g. polygamous, orsame-sex unions or marriages)?
In this regard, FOR SA clearly stated that the startingpoint for any new policy, or change to existing policy, is the Constitution.Sections 9, 15, 18 and 31 of the Constitution grant religious organisations aright to institutional autonomy. This means that religious organisations maynot be forced to act against their conscience and belief, including the solemnisationof any union or marriage that goes against their conscience, religion andbelief. This was also confirmed by the Constitutional Court in Ministerof Home Affairs v Fourie (the case that legalised same-sex marriage in2005), in which the Court stated that “acknowledgement by the state of theright of same-sex couples to enjoy the same status, entitlements andresponsibilities as marriage law accords to heterosexual couples, is in no wayinconsistent with the rights of religious organisations to continue to refuseto celebrate same-sex marriages” (para [98]). FOR SA thusappealed to the Minister not to force religious marriage officers to actagainst their conscience, religion and belief as this would violate theConstitution.
In reply to the questions and concerns in this regard, theMinister assured religious leaders that he was not there to impose on religiousleaders, or to change their religious beliefs. In the Minister’s own words, “I want to ensure you that freedom ofreligion is assured”. For many religious leaders, this assurance may havebeen cold comfort however – particularly in light of the Minister’s concluding statement(during his speech in Cape Town) that the Department will not force religiousleaders to solemnise marriages against their conscience, religion and belief,but that “someone is going to take you toCourt to force you”.
The meetings were consultative in nature, and no decisionswere taken. Similar dialogues are being held with other groups, includinggender and human rights activists (which has already taken place on 30 August)and with academics and think-tanks (on 14 November, where FOR SA will again beone of the panel speakers). FOR SA will continue to monitor and report ondevelopments.
[author [author_info]Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.[/author_info] [/author]
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Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy freedom of religion by:
Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by:
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FOR SA currently has a support base of religious leaders and individuals representing +/- 6 million people across a broad spectrum of churches, organisations, denominations and faith groups in South Africa.
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