Two bride figurines adorn the top of a wedding cake during a same-sex wedding ceremony. File picture: Mick Tsikas/Reuters
Two bride figurines adorn the top of a wedding cake during a same-sex wedding ceremony. File picture: Mick Tsikas/Reuters

The Constitutional problem with South Africa’s Civil Union Amendment Bill

By Opinion Time of article published Jul 30, 2020

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By Professor Helene van Coller

The legalising of same-sex marriages came as a result of the leading case of the Constitutional Court in Minister of Home Affairs v Fourie, when South Africa became the fifth country in the world and the first country on the African Continent to legalise same-sex marriages (civil unions).

As a result of this judgment, the South African Parliament passed the Civil Union Act 17 of 2006 to extend marriage rights to same-sex couples.

The Act accommodated religious views by creating an exemption for religious ministers, who are not is forced to solemnise a civil union under the Act. The question is what about public servants?

The right to manifest one’s belief as part of the right to freedom of religion is not only a right reserved for religious ministers but everyone, including a public servant.

The Constitutional Court specifically recognised this right and acknowledged the fact that the state could apply the principle of reasonable accommodation to protect this right.

By doing so, civil marriage officers who had sincere religious objections to officiating same-sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience. Parliament endorsed this view of the Constitutional Court and in drafting the Act, inserted section 6, in terms of which a marriage officer was permitted to object on the grounds of conscience, religion and belief in respect of solemnising same-sex civil unions.

This view by our highest court and the South African government endorsed an interpretation of the constitutional right to believe, to include the right to manifest those beliefs everywhere, also in the public sphere.

However, the government is now backtracking.

Parliament passed the Civil Union Amendment Bill removing the conscientious objection clause from the Act.

Religious marriage officers are still exempted under the Civil Union Act, and the Repeal Act only applies to designated marriage officers, who will be compelled to solemnise same-sex unions.

If the Bill becomes law, and the legislation omits this important conscience clause for civil servants, it will be left to the Constitution to fill this omission and any challenge will be governed by section 15, which implicitly accommodates the right to conscientious objection.

A broad and inclusive approach to religious freedom acknowledges the plural and multi-religious nature of the South African society and promotes not mere tolerance, but a reasonable accommodation of all views and convictions in society.

Although a court can refuse a claim for an exemption where the legislation serves an important interest, it is still necessary to determine whether the objectives which the rule or provision is intended to achieve will be frustrated by allowing for an accommodation.

As confirmed by our Constitutional Court, it means that the state should, wherever reasonably possible, ‘seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law’.

It is only fair that a reasonable accommodation should be considered, even if it sometimes means that the state or employer may incur additional hardship or expense to allow everyone to participate and enjoy all their rights equally.

This has been successfully implemented in relation to religious observance in the workplace and public schools.

If this means that the Minister of Home Affairs must plan a bit better in recruiting and assigning employees to the various offices than that is what is expected of the Department.

Thus, instead of removing section 6 of the Act, a slight legislative amendment, regulation, or directive can be drafted with some requirements to narrow the scope of the current conscientious objection clause to address some of the difficulties experienced by same-sex couples in having their same-sex marriages solomnised.

This provision can require a civil servant to formally register as a conscientious objector. The Minister or relevant Department of Home Affairs can consider applications from new and existing employees to be classified as a conscientious objector for purposes of officiating civil unions, similar to what has been successfully legislated in the Defence Act relating to religious objection to military and related services.

The designated official would then consider applications to classify an applicant as a conscientious objector if satisfied that the applicant has a conscientious objection to officiate same-sex marriages and have to render that service under this Act; the conscientious objection is based on moral, ethical or religious grounds and corresponds to the particulars in the application of the applicant, and the applicant’s conscientious objection is sincere and deep-rooted.

The designated official or committee may then grant (or refuse) an application, classify the civil servant concerned as a conscientious objector, and record it in a formal register. Only approved conscientious objectors in the registry will then be exempted.

The Department can then assign employees to specific offices on an equitable basis in line with the various staffing needs.

Assigning employees to specific offices, districts or geographical areas has been a long-standing practice in various sectors of the public service. In this manner, the religious views of public servants will be reasonably accommodated, and services will be provided equitably.

Section 15(2) of the Constitution further recognises the right to conduct religious observances at state institutions, provided that those observances follow rules made by the appropriate public authorities; they are conducted on an equitable basis; and attendance at them is free and voluntary.

The right to observe one's religion, goes hand in hand with the right to manifest those beliefs. This provision has been described as contradicting any depiction of the South African State as a secular State.

It is safe to say that South African society is a society with no strict secular character, but rather a society where recognition is given to the wide variety of religious traditions and space in which they can interact and express their different religious beliefs and practices, even in the public sphere.

This approach is already supported and confirmed by the South African Government in its 2003 National Policy on Religion in Education, in which it explicitly confirms the fact that South Africa is not a secular state where there is a very strict separation between religion and the state. The policy recognises the rich and diverse religious heritage of South Africa and adopts a cooperative model where there is interaction and cooperation between the state and religion.

This is in line with section 7(2) of the Constitution that emphasises the fact that the state is expected not only to respect and protect the rights in the Bill of Rights, but also to promote and fulfil them. This advocates for more than mere accommodation, but a positive recognition by the state.

The state should refrain from imposing a separation between itself and religion, and must allow for religion to enter the public domain. This means that certain accommodation, advantages and exemptions may be conferred on some groups as long as it is fair and not to the disadvantage of others.

Within this model, neutrality is interpreted as equal recognition of all religions by the state and not a complete withdrawal of religion from the public sphere. By recognising the right to religious observance in public schools, the court emphasised the fact that our diversity in South Africa is celebrated, not tolerated.

The Constitution creates a framework for accommodating rather than suppressing religion and religious differences. Let us be reminded that religious freedom does not mean freedom from religion, but rather freedom for religion.

Society is therefore not protected from religion, but opportunity and space must be created for people to manifest their beliefs freely and in all spheres of life, even in the public service.

* Helena van Coller is an Associate Professor at the Faculty of Law at Rhodes University, South Africa. Her main field of research is Administrative Law and aspects of Law and Religion.

** The views expressed here are not necessarily those of IOL.

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