File picture: Darryl Bush/AP

Johannesburg - An MP is pushing for the dumping of legislation that allows Home Affairs marriage officers to decline officiating at same-sex marriages.

Deidre Carter’s private bill aiming to amend the Civil Union Act has been passed by Parliament. Carter is an MP for Cope.

The private bill will be processed in Parliament, a step that could see the Civil Union Act amended.

In the bill, now gazetted, Carter argued that while the act barred marriage officers from declining to solemnise all marriages on grounds of conscience, religion or belief, it permitted refusal in same-sex civil unions.

An officer can be relieved of obligation to solemnise gay and lesbian marriages if they submit an objection, Carter pointed out.

She said the clause allowing officers to withdraw from officiating same-sex marriages was unconstitutional.

South Africa legalised same-sex marriages in 2006 when then president Thabo Mbeki signed the Civil Union Act into law.

Said Carter: “The marriage officers envisaged in section 6 of the (Civil Union) Act are those who solemnise civil unions in their capacity as civil servants.”

They have no legal rights to object to solemnising all but same-sex marriages, she said.

“For instance, a devoutly Christian civil servant may not object to solemnising a marriage for an opposite-sex couple who are atheist or Muslim.

“A marriage officer who has racist views may not object to marrying an interracial opposite-sex couple.

“But civil servants may object to solemnising same-sex unions under that act.

“The only ground for objection is therefore the sexual orientation of the couple, which is in violation of section 9(3) of the constitution,” Carter said.

Responding to Carter’s written question in Parliament last year, Home Affairs revealed that 421 marriage officers had been exempted from performing gay marriages because they objected on the grounds permitted by legislation.

The department has 1130 designated marriage officers, meaning a third of them refuse to officiate same-sex unions.

Carter’s private bill said current legislation excluded same-sex partners from the only platform they have at their disposal “because the religious bodies they attend are unwilling to do so”.

“The prevalence of homophobia in our society could mean that a large number of civil servants will avail themselves of the statutory right to lodge objections, resulting in same-sex marriage becoming available in theory only, especially in rural areas.

“This would clearly constitute undue hardship for same-sex couples,” Carter said.

“This, therefore, leads to a conclusion that section 6 of the act limits the rights of same-sex partners to enter into a civil union and this limitation cannot be justified in an open and democratic society.”

The LGBTI community has welcomed Carter’s bill. Nonhlanhla Mkhize, an activist attached to the Durban-based Gay Centre, said the act was discriminatory from the outset.

“We understood that at that stage the argument was that civil servants had a right to feel comfortable. But for us it was and is problematic.”

The Star