Civil Union Amendment Bill 2018 Overview: Religious Freedom and Same-Sex Marriage

1. CIVIL UNION AMENDMENT BILL November 2018

2. Overview CIVIL UNION AMENDMENT BILL [B11-2018]

3. Civil Union Act • Section 6 of the Civil Union Act provides as follows: • “6.   Marriage officer not compelled to solemnise civil union A marriage officer, other than a marriage officer referred to in section 5, may in writing inform the Minister that he or she objects on the ground of conscience, religion and belief to solemnising a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnise such civil union.” • The effect of this is that civil servants in the employ of government may refuse to solemnise a civil union between same sex couples. • In the case of civil marriages (i.e. couple of the opposite sex) the Marriages Act provides that a marriage officer must solemnise all marriages places before him or her and is not allowed to refuse to solemnise a marriage on the grounds of conscience, religion or belief. • The same marriage officer is permitted in terms of the Civil Union Act to refuse to solemnise a marriage between same-sex couple on the grounds of conscience, religion and belief.

4. Constitution • Section 15 of the Constitution guarantees the right to freedom of religion, belief and opinion and provides as follows: • “15. Freedom of religion, belief and opinion (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion. (2) Religious observances may be conducted at state or state-aided institutions, provided that— (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary. (3) (a) This section does not prevent legislation recognising— (i)marriages concluded under any tradition, or a system of religious, personal or family law; or (ii)systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. (b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution. • This is a fundamental right and it is well entrenched in international law in the International Covenant on Civil and Political Rights. • The international Covenant specifically allows this freedom to be limited by law if necessary to protect public safety, order, health or fundamental rights and freedom of others.

5. Cont… • Section 15 like all the rights in the Constitution is not an absolute right- it is subject to section 36 of the Constitution normally referred to as the limitation clause. • 36. Limitation of rights (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

6. Cont… • The Courts have shown an inclination to avoid a limitation clause analyses of section 15 where possible, preferring instead to restrict the scope of the right. • The effect is that not every practise claiming to be an exercise of the freedom of religion, belief, conscience, and thought is treated as such by the courts. • The courts use three techniques to restrict the scope of the right to freedom of religion, belief, conscience and though: • Testing the sincerity of the claimant’s belief; • Require the claimant to show a substantial burden on the exercise of freedom of religion or that the prohibited practice is central to the tenet of the religion; and • Contextual interpretation: the courts will not protect practises that are specifically excluded from protection elsewhere in the Constitution, in this case the right not to be discriminated on the grounds of gender, sex and sexual orientation which is protected under section 9 of the Constitution.

7. Cont… • In Christian Education South Africa v Minister of Education the Court remarked that religious people may seek to use the freedom of religion as a shield to fend off attacks on constitutionally offensive group practises. • In other words people may hide behind religion to violate other people’s rights guaranteed in the Constitution. • The principle developed in our jurisprudence is that the exercise of the freedom of religion must not be inconsistent with other rights guaranteed by the Bill of rights which the state has a duty to respect, protect, promote and fulfil. • A distinction must be made between holding a belief and the public expression of the belief.

8. Minister of Home Affairs v Fourie • The Civil Union Act was enacted as a result of the Constitutional Court Judgement. • The Court ruled that it was unconstitutional for the state to provide benefits of marriage to opposite-sex couples whilst denying them to same-sex couples. • The Court said this was an infringement of the right to equality before the law and the right not to be discriminated against by the state on grounds of sexual orientation. • The Court accommodated the right of religious leaders and commented that the state cannot compel the religious marriage officers to solemnise same-sex unions as that would be interfering with the sacredness of their religion. • In respect of civil servants marriage officers the Court held 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. If Parliament wished to refine or replace the remedy with another legal arrangement that met constitutional standards, it could still have the last word.”

9. Reasonable Accommodation • The principle of reasonable accommodation was applied by the Constitutional Court in the Christian Education, the Prince case and the Pillay case. • In all these cases the question the Court had to answer was weather a particular party should have been exempted from complying with the generally applicable rules to accommodate the other party’s religious beliefs. • The approach is whether or not reasonable accommodation is necessary depends on the context sensitive balancing exercise between the competing rights and interests. • The first consideration in the balancing exercise concerns the nature and the importance of the rights that has been limited in this case it is the right to freedom of religion and the right to equality. • Included within this factor is also a consideration of the nature of the history of the group whose religious rights have been affected.

10. Cont… • The second leg of the enquiry asks whether the legislation or legal rule that limits the right serves a legitimate government purpose and whether is actively achieves that purpose. • The final leg of the test would be whether less restrictive means exist to attain the same government purpose. • The function of reasonable accommodation is to prevent social marginalisation of particular groups and to accommodate and celebrate cultural, religious and other forms of diversity. • The conscientious provision in the Civil Union Act accommodate the rights to religious freedom of those civil servants who are marriage officers and who object to conducting same-sex marriages. • On the other hand the provision also limits the constitutional rights of same sex couples to marry in terms of legislation. • The right to equality, dignity, not to be discriminated against is also being violated by section 6 of the Civil Union.

11. Cont… • The way in which the freedom of religion and conscience has been accommodated in the civil union Act fails to meet basic constitutional standards. • The committee would have to determine whether it is fair to grant exemption to certain groups whilst withholding it to others – the question is it fair to give civil servants section 15 rights and deny same sex couples section 9 and 10 rights? • There should be a presumption in favour of accommodating religious rights held sincerely but this presumption is rebutted in the event that religious groups claim that their religion commands them to violate constitutional rights of other individuals.

12. Discrimination by the state • The marriage officers envisaged in section 6 of the Civil Union Act are those who solemnise civil unions in their capacity as civil servants. • The same civil servants who as marriage officers have no legal rights to object to solemnising marriages under the Marriage Act. • Civil servants may therefore object only to solemnising unions under the Civil Union Act and, moreover, only to 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.

13. Cont… • Clearly there is an anomaly in the way that the legislation treats religious marriage officers, on the one hand, and civil marriage officers on the other. • One would have expected that, if anyone should have a legal right to object to conducting same-sex marriage, it should be religious and not civil marriage officers, owing to the secular nature of the marriage conducted by a civil servant. • There is no religious service, and the words of the marriage formula are of a legal rather than a religious nature.

14. Cont… • In the context of South African same-sex partnerships, many same-sex couples may be obliged to have their marriages conducted by civil servants 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.

15. Cont… • The Civil Union Act accommodates religious and non-religious objections to conducting same-sex marriages in an arbitrary, inconsistent and deeply offensive way. • When civil servants act as representatives of the state, their religious beliefs and other convictions should not provide excuses for discrimination. • The marriage officers referred to in section 6 of the Civil Union Act are employees in the public service as stated in the Public Service Act.

16. Cont… • The designated marriage officers referred to in the Civil Union Act are employed by the Department of Home Affairs, which is a national department in terms of the Public Service Act. • The Constitution in section 195 provides that public administration must be governed by values and principles enshrined in the Constitution. Amongst the principles governing public administration, two stand out: • services must be provided impartially, fairly, equitably and without bias; and • people’s needs must be responded to.

17. Cont… • Section 197 of the Constitution places an obligation on the public service to function in terms of national legislation and to loyally execute the lawful policies of the government of the day, which the Civil Union Act is. • Section 197(3) further provides that no employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause. • The Constitutional Court have pronounced that such discrimination has no place in our democratic society.

18. Savings provision • Any exemption granted by the Minister in terms of section 6 of the principal Act immediately before this Act takes effect, remains in force.

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