The Portfolio Committee on Home Affairs listened to the summary of the submissions that were for and against the Civil Union Amendment Bill. The Committee agreed it would need a special meeting to deliberate on the submissions and asked the legal advisors of Parliament and Department to work on the amendments and provide guidance to the Committee. The sticky point around the Bill was section 6. The submissions that were against the Bill asked Parliament not to unfairly force Home Affairs officials to recognise or affirm same sex marriages. They urged Parliament not to approve this amendment because it would be a direct negation of our constitutional right to freedom of conscience, religion, thought, belief or opinion. They were of the opinion that this Bill has come to destroy the whole concept of family and society. Those that were in favour of the Bill believed that section 6 must be removed from the Civil Unions Act as doing so would protect the rights of same-sex couples seeking to solemnise their unions and afford them constitutional rights including the right to dignity and equality. Section 6 could prevent poorer same-sex couples from getting married. The enforcement of the Civil Union Act presently reinforces inequalities between same-sex and heterosexual couples’ access to marriage.
The Chairperson asked members if it was necessary for the Committee to spend time on the submissions on the Civil Union Amendment Bill rather than working on the urgent Electoral Amendment Bill.
Mr M Waters (DA) felt it was important to listen to the submissions that were against and in favour of the Civil Union Bill in order to give members a full picture.
Ms D Raphuti (ANC) suggested members should be given time to interrogate the documents at their own time because they received the documents just before the meeting.
Mr M Hoosen (DA) proposed the submissions should be continued with and be completed and the Electoral Amendment Bill could be done later.
The Chairperson indicated there were other submissions received from the public and asked what the Committee should do with them.
Ms Raphuti said the Committee should continue to accept the written submissions from the different stakeholders and discuss them in the next meeting that would deal with the Civil Union Amendment Bill.
Ms Noluthando Pikashe, Parliament Legal Advisor, stated the submissions had conflicting rights between religious and personal rights. She indicated that she needed time to work on a report that would focus on balancing these conflicting rights.
Ms S Nkomo (IFP) indicated the Committee needed a structured time and should decide how much time it needed to move forward.
Mr Waters agreed with Ms Nkomo, noting that the submissions were raising constitutional matters. He proposed the Committee to get a legal advice to speed up the matter.
The Chairperson agreed the presentation to continue and said the onus was on the Members to go through the submissions at their own time to prepare for the meeting that would deal with the submissions. He suggested that the parliamentary and departmental legal advisors should jointly work on the amendments and guide the Committee.
A summary briefing on the submissions on the Civil Union Bill
Mr Adam Salmon, Committee Content Advisor, informed the Committee it had received 568 submissions. 65 submissions were against while 503 were in support of the Bill. The submissions that were against the Bill were signed by 33 individuals, mostly from church organisations. The submissions against the Bill stated that religious beliefs did not support same sex marriages. They argued that Parliament should scrap the Civil Union Act in its entirety and amend the Marriage Act to be gender neutral. The submissions asked Parliament not to unfairly force Home Affairs officials to recognise or affirm same sex marriages. They urged Parliament not to approve this amendment because it would be a direct negation of people’s constitutional right to freedom of conscience, religion, thought, belief or opinion. They were of the opinion that this Bill would destroy the whole concept of family and society.
The Cause for Justice (CFJ) stated that same sex couples could have their relationship solemnised as a civil union in terms of the Civil Union Act. It said there were some who might rightly be called religious bigots while there were also sincere conscientious objectors. It pointed out that marriage officers who were conscientious objectors were not motivated by a desire to prejudice others on the basis of their sexual orientation, but rather by a desire to live in accordance with their conscience or sincerely held beliefs regarding intimate partner relationships. It stated when considering the number of HAO (Home Affairs Offices) where all marriage officers have a conscientious objection to solemnising same sex civil unions, it was clear that being able to live in accordance with their religious beliefs was important to a large percentage of marriage officers. Cultural beliefs regarding marriage, family and intimate partner relationships were important to many marriage officers. It submitted that the unfairness of the discrimination does not reside in the granting of a right to conscientious objection to marriage officers. Rather the cause of unfair discrimination was geographic and budgetary in nature.
The CFJ submitted the granting of the right to conscientious objection to marriage officers was a reasonable accommodation of their conscience, religion and/or beliefs in the work place. To not grant this right to marriage officers, would unfairly discriminate against them on the basis of their conscience, religion, belief and/or culture and constitute an unreasonable and unjustifiable infringement of their right to freedom of religion, belief and opinion.
As a result of the current geographic staffing deployment of marriage officers at HAO across the country by the DHA and the lack of measures to address the lack in service delivery to some same sex couples requiring solemnising of their civil unions in certain geographic areas, the practical outworking or exercise of the conscientious objection exemption by marriage officers employed by the DHA (section 6 of the Act) infringes on the aforementioned same sex couples’ equality rights.
The DHA could, for example, publish a schedule of days on which roving marriage officers attend specific HAO’s and may even provide a mechanism whereby same sex couples could make a special request for a roving marriage officer to attend at a specific HAO at an earlier date. Although it was possible that same sex couples might experience very slight delays in service delivery, they would be able to solemnise civil unions at the HAO of their choice and would not be deprived of their constitutional rights. The Constitution requires that constitutional rights should be balanced in a manner that is fair and maximises the enjoyment of the rights of all persons. In order to achieve this objective, the relatively simple and practical solution of providing roving marriage officers is to be preferred. This solution balances the potentially conflicting rights of same sex couples and marriage officers and maximises respect for and the protection/fulfillment of human dignity, equality and freedom of conscience, religion, belief and opinion of both groups. Same sex couples would be able to exercise their right to have their civil unions solemnised, while the right to conscientious objection of marriage officers would be preserved and not permanently extinguished.
Freedom of Religion South Africa indicated the vast majority of state-employed marriage officers do not hold any objections to concluding same-sex marriage. It submitted that having a dedicated state-employed marriage officer who could assist same-sex couples in having their union solemnised may even result in them having their union solemnised much quicker than in the case of many heterosexual couples who have to patiently wait their turn. What this would entail is, for those Home Affairs offices and/or geographical areas that have been identified as lacking sufficient marriage officers who are able to solemnise same-sex marriages, and in order to meet a specific need, give preference to applicants who are able to solemnise same-sex marriage.
The Destiny Alive Family Church stated the Constitutional Court of South Africa has held that the right to freedom of religion and belief includes not being coerced or forced to deny or to act contrary to one's beliefs. In their view the right to freedom of belief and right to human dignity cannot be separated. They quoted Justice Sachs in their submission who said: "The right to believe or not to believe, and to act or not to act according to his or her beliefs or non-beliefs, is one of the key ingredients of any person's dignity."
The Evangelical Alliance of South Africa was of the respectful opinion that the Civil Union Act was consequently very thoroughly considered by Parliament before it was enacted and that sections 5 and 6 were the product and the outcome of the many submissions by people of faith. A simple removal of section 6 without further public hearings in all provinces would fly in the face of the said public participation in 2006 and would consequently certainly lack the required consultation with and the support of the people of South Africa.
What was extra-ordinary about the Fourie judgment (MINISTER OF HOME AFFAIRS AND ANOTHER V FOURIE AND ANOTHER (CCT 60/04)  ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005) was its deep concern for the protection of the interests of groups that were strongly contesting the issue of same sex marriage, that is, the LGBTI groups on the one hand and the religious communities of our country on the other. The judgment was at pains to reiterate the fact that what needed to be done was to ensure that ultimately this matter was handled in a manner that engaged in what we have stated as “the balancing act”.
Their arguments raise important issues concerning the relationship foreshadowed by the Constitution between the sacred and the secular. They underline the fact that in the open and democratic society contemplated by the Constitution, although the rights of non-believers and minority faiths must be fully respected, the religious beliefs held by the great majority of South Africans must be taken seriously. As this Court pointed out in Christian Education, freedom of religion goes beyond protecting the inviolability of the individual conscience. For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. A religious belief has the capacity to awaken concepts of self-worth and human dignity which form the cornerstone of human rights.
Upon conclusion of the employment contract of civil marriage officers in their various positions of employment with the State, the requirement of being compelled to solemnise same-sex marriage / civil union was not part of the terms and conditions of employment. By unilaterally changing the terms of employment the state as employer would be committing an unfair labour practice. It speaks for itself that this would open the state as the employer up to a deluge of litigation at the cost of the tax payer.
Mr Salmon reported that submissions that were in favour of the Bill indicated that state officials had a fundamental right to believe whatever they liked, but public servants should not be able to pick and choose which laws they would follow or which services they would provide. The submissions indicated they were sympathetic to potential labour law implications following the possible repeal of section 6, in that existing staff might reasonably object to conditions of service being changed. However, this was no impediment to any new job applicants being asked to affirm that they would indeed provide the same services to all citizens.
The submissions believe that section 6 must be removed from the Civil Unions Act as doing so would protect the rights of same-sex couples seeking to solemnise their unions and afford them constitutional rights including the right to dignity and equality. Same-sex couples that were poor could not to travel to different offices. Section 6 could prevent poorer same-sex couples from getting married. The enforcement of the Civil Union Act presently reinforces inequalities between same-sex and heterosexual couples’ access to marriage.
He said the submissions supported the argument made by the Concourt that it would be out of order to allow religious beliefs and values of some to guide the constitutional rights of others. The state was separate from individuals’ personal religious beliefs. Individuals’ personal beliefs should not determine who receives services from the government. A marriage officer could refuse to marry same-sex couples because of his dislike/hatred of same sex couples and the Civil Union Act would permit it. This is because section 6 lists “same-sex unions” as the only reason a civil marriage officer may object, meaning that it endorses discrimination by state officials on the basis of sexual orientation alone.
The Joint Working Group (JWG) stated they object to allowing for conscientious objection by public officials based purely on a couple’s sexual orientation. The JWG reiterated that section 6 reinforces discrimination against same-sex relationships, which is exactly what the Concourt ordered the state to address. It was, however, retained in the legislation when it was passed by the National Assembly.
The Helen Suzman Foundation (HSF) urged the Committee to rethink the legal framework governing marriage and civil unions to enhance the realisation of rights held by everyone in the LGBTIQ community. It said it must be acknowledged that many South Africans in the LGBTIQ were extremely vulnerable in society. Much more work needed to be done to afford these individuals protection at a more basic level. To realise one’s right to same-sex marriage, one first had to feel safe to identify as a gay in the community or openly have a partner of one’s choice.
The meeting was adjourned.
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