South Africa bill could end religion-based discrimination for same-sex marriages

This article is part of a series produced for Religion News Service’s parent organization Religion News Foundation with support from the Arcus Foundation and Heinrich Böll Stiftung Southern Africa. It emerged from a November 2017 journalism training workshop in Cape Town, South Africa.

JOHANNESBURG — A proposed amendment to South Africa’s Civil Union Act, which legalized same-sex marriage in 2006, would prevent civil servants from refusing to marry same-sex couples on the basis of conscience, religion or belief.

Under Section 6 of the current law, government-employed marriage officers can refuse to solemnize same-sex unions if they state their objection in writing to the Minister of Home Affairs.

In 2017, 421 of the Ministry’s 1,130 marriage officers were exempt from performing same-sex civil unions on these grounds. A September 2016 report by Mambaonline, a South African queer news site, confirmed that only 28 percent of Home Affairs branches throughout the country have marriage officers willing to conduct same-sex marriages.

Constitutional law expert and veteran LGBTQI rights advocate Pierre de Vos supports the proposed change and says the current law discriminates against people based on their sexual orientation.

“It sort of institutionalizes prejudice. Whether the prejudice is animated by truly held religious beliefs or not, it’s still problematic because (civil servants) get paid by the state,” de Vos said. “If you are an employee of the state, you don’t have a right to discriminate, even if you personally believe you want to discriminate for whatever reason.”

Deidre Carter, a member of Parliament for the minority Congress of the People party, introduced the Civil Union Amendment Bill to parliament.

“A devoutly Christian civil servant may not object to solemnizing a marriage for an opposite-sex couple who is atheist or Muslim, but civil servants may object to solemnizing same-sex unions under that Act,” Carter said. “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.

Section 9(3) bars government from “unfairly discriminat(ing) directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

Interested parties and institutions have until April 28 to comment on the bill, after which the Home Affairs Portfolio Committee will determine whether to reject it, call for public hearings, or send it to members of Parliament for a vote.

Sanja Bornman, managing attorney of the Gender and Equality Programme at Lawyers for Human Rights, agreed with De Vos and Carter that the Civil Unions Act violates same-sex couples’ rights to equality and dignity.

“It is definitely hurtful and humiliating when an official employed by our secular state, for the express purpose of services to the public, refuses to provide that service to you on the basis of your sexual orientation and their own personal prejudice,” she said. “It makes people feel like they do not count, and their relationships and constitutional rights are not worthy of respect and protection.”

If the bill does not pass, Bornman says Lawyers for Human Rights will seek advice from South Africa’s queer community on how best to proceed.

South Africa’s Constitution, which came into effect in 1997, specifically states: “Everyone is equal before the law and has the right to equal protection and benefit of the law.”

The Rev. Kenneth Meshoe, leader of the minority African Christian Democratic Party, said his ACDP could never support the bill.

“(Same-sex couples) are given people to attend to their needs. The constitution promises and also gives the right to people not to violate their conscience. It is wrong to want to violate the consciences of people who believe doing so is wrong,” he said.

Rumana Akoob is a journalist based in Johannesburg. 

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