Durban – Legal advocacy group Freedom of Religion South Africa (FOR SA) said on Monday it had petitioned President Cyril Ramaphosa to exercise his constitutional prerogative by sending the Civil Union Amendment Bill back to the National Assembly for reconsideration.
The bill was adopted by the National Council of Provinces (NCOP) on July 1. It prevents state-employed marriage officers and magistrates from objecting to solemnising same-sex marriages on the grounds of conscience, religion and belief.
FOR SA said it had "serious concerns" about the constitutionality of the bill, in particular that it was in direct conflict with Justice Albie Sachs' recommendation in the Fourie case, which legalised same-sex marriage in South Africa and gave rise to the Civil Union Act, 17 of 2006.
In that judgment, Justice Sachs recommended that state-employed marriage officers that had conscientious objections to solemnising same-sex marriages, could have their rights reasonably accommodated by the state.
FOR SA said the conscientious objection clause contained in section six of the act – which will be removed by the bill – was Parliament’s response to the very recommendation by the Constitutional Court. According to the organisation, it was therefore incorrect to argue that section six amounted to “unfair discrimination” against same-sex couples.
“The Constitutional Court has confirmed on multiple occasions that there is no hierarchy of rights in our Constitution, so legislation must find ways that respect and protect all fundamental rights,” said FOR SA executive director Michael Swain.
"The Act is an outstanding example of legislation where rights have been properly balanced. It extends equal rights to same-sex couples to have their unions legally recognised and registered, while at the same time recognising and protecting the religious freedom rights of State-employed marriage officers and magistrates.”
Swain said in a detailed petition sent to Ramaphosa, FOR SA pointed out that the bill was also unconstitutional because it failed to pass the constitution’s limitations test contained in section 36.
The test states that any limitation of a fundamental right must, among other things, be done in the least restrictive way.
Swain said given that viable, practical alternative solutions existed to resolve what was essentially a practical problem, the bill’s failure to limit state-employed marriage officers’ rights in the least restrictive way possible, made it doubly unconstitutional.
He said FOR SA recommended that in the same way that circuit courts, mobile medical clinics and similar services were deployed to rural areas to ensure that everyone had access to state-supported services, state-employed marriage officers and magistrates that did not have a conscientious objection to solemnising same-sex marriages, could be sent on circuit to the various offices of the department of home affairs (DHA) to assist same-sex couples.
Where the DHA identified an area where there were insufficient marriage officers for purposes of solemnising same-sex marriages, it could give preference to job applicants that were willing or able to do so. "In this way, the rights of same-sex couples are given effect, while reasonably accommodating the conscientious rights of state-employed marriage officers," said Swain.
In its petition, FOR SA also raised concern that various requests for public hearings on the bill were ignored.
"Instead, Parliament chose to limit input on the Bill exclusively to written submissions, thereby removing the opportunity for Members of Parliament to ask questions on the written submissions made, and/or to hear an alternative legal perspective to that presented to MPs by the Parliamentary Legal Services," said Swain.
"FOR SA respectfully submitted that Parliament’s failure to grant public hearings in either the National Assembly or the NCOP has, in this instance, resulted in an undermining and/or a denial of the public’s right to a proper and participative democratic process."
Swain said it did not "make sense" to amend the act through the bill, at this time, since the DHA was already in the process of conducting a complete review of the laws governing marriage in South Africa.