July 16, 2019

Small hitch in smoothing the way for same-sex couples to get hitched

The Committee on Home Affairs unanimously voted to repeal a provision in the Civil Union Act which allows Home Affairs marriage officers to refuse to marry same-sex couples. The landmark Bill, tabled in January, if passed will bring an end to a clause in the Act which has long been considered discriminatory.

The clause that it proposes to remove, Section 6 of the Civil Union Act, has been identified by members of the LGBTQ community and other activists as an unconstitutional and discriminatory flaw in an otherwise progressive law that legalised same-sex marriage in South Africa in 2006.

The provision allows marriage officers employed by the state to refuse to solemnise civil unions if they personally object to same-sex relationships on the grounds of their “conscience, religion [or] belief”.

The vote had already been passed by the Committee when the Member from the ACDP raised her hand requesting an opportunity to speak against the Bill.

The private Member’s Bill, tabled by Deidre Carter of COPE, aims to remove this clause to prevent the law from allowing Home Affairs marriage officers to discriminate against same-sex couples.

The Bill had already passed smoothly through the Committee and been unanimously accepted when Cheryllyn Dudley of the African Christian Democratic Party raised her hand requesting an opportunity to speak against the Bill.

Chairperson Patrick Chauke explained that the Committee had already voted for the motion. After the Committee has voted there is still a long way to go, with many opportunities for public comment. He explained that an advert calling for public submissions was next in the process.

Said Chauke: “The Committee has decided and we are now going to test it outside, so you are going to have an opportunity when we have the hearing to come prepared and argue.”

Dudley, as a long-standing Member of Parliament, knows the procedure but she was not going to be stopped. She wanted to speak then and there, at the Committee meeting, even if it was too late.

Chauke tried again. He assured her she would have plenty opportunity to speak her mind. After all, this was very early in the process of law-making. After a Committee has voted the Bill is opened to the public and anyone can make an input to Parliament.

Despite repeated assurances by Chairperson Chauke that she will have an opportunity later in the process, the Member from the ACDP was not going to be stopped simply because her turn to speak would come later.

Dudley was most insistent. “May I request that the ACDP make a comment on this acceptance of this proposal?”

“The ACDP will be given an opportunity when we deal with…,” said Chauke, but he got no further.

Dudley argued “That is most unusual. Other committees usually allow it.”

The Chairperson sounded surprised to hear that. Perhaps the ACDP has more experience of its motions being overruled by entire Committees.

“OK, so you want to comment?” the Chairperson asked again, sounding a little bemused. “But the motion has already been adopted.”

“By the way,” he then asked, how come she was there anyway because she was not a member of the Committee?

Once again Dudley was not to be put off. Yes, she conceded she was not a member of this Committee but as a Member of Parliament, she insisted, she had a right to speak. She explained to the Chair that “obviously because the ACDP is small and is not represented on all Committees” it doesn’t always get an opportunity to comment.

Just because she represented a small party with proportionately little public support wasn’t going to stop her. She read her statement:

“The ACDP would just like to place on record that we disagree with the motion on the desirability of the Civil Union Bill which was adopted today. The African Christian Democratic Party is disturbed by the decision which clearly indicates Parliament and the department’s decision to force officiating officers of civil marriage to violate their conscience.

“The Bill as passed would allow the civil servants who are marriage officers to be compelled to solemnise same-sex marriages regardless of their religious beliefs. Of course we are a society that professes to value freedom of choice but we are becoming more and more selective about who gets to chose and who does not.

“Our Constitution actually protects freedom of conscience, religion and belief and Members of Parliament have a duty to see that people are not compelled to act against their conscience in the course of their work and that they are not discriminated against on these grounds.

“Finally, it should be noted that a significant number of South Africans are doubly concerned that this legislation is part of a broader agenda that forces churches and religious institutions to conduct civil unions in the name of marriage. More and more court cases are being used to harass religious bodies and there is huge suspicion that section five, which protests marriage offices, will be targeted in due course.”

With her statement read, she took her seat. There was no debate, either because rules don’t permit debate after a vote, or because there is no point in debating after the vote has been passed, or perhaps because no Committee Members could think of anything to say.

After all, the Bill of Rights is clear that the state may not unfairly discriminate directly or indirectly against anyone on a number of grounds, including those of gender, sex and sexual orientation.

If that’s not sufficient, the Constitution also sets out the values and principles governing our public administration and it clearly states that civil servants are required to provide civil services impartially, fairly, equitably and without bias.

In its explanatory notes, the Bill points out that there is no provision in the law for Home Affairs marriage officers who are Christian to refuse to marry Muslim couples, or those who have racist beliefs to refuse to marry an interracial couple.

Maybe someone could have mentioned something about the heartbreak and humiliation endured by same-sex couples when they are turned away from Home Affairs branches because no official is willing to marry them.

The Chairperson did add that he was reminded of the days when the Civil Union Act was still a Bill and he was one of those parliamentarians who travelled the country gathering public inputs. He recalled one citizen who really scared him. “He said if this Bill is passed fire is coming. It is going to burn you chairperson. This fire is going to burn the whole Committee, the whole Parliament. We are all going to die. This guy really scared me, saying that all of us are going to die,” Chauke reminisced.

But no one died, and anyway, said Chauke, “we had to get back to what the Constitution, which is the supreme law of the country, says.” An no one died after the Bill was passed.

“The motion has been adopted and now we will allow the parliamentary process to kick in,” he concluded, assuring Committee members that, as always, they will receive copies of all the public comments submitted to Parliament. He didn’t say if that applied to Dudley who was not, after all, a member of this Committee.

The Bill, which was published in the Government Gazette on 1 March, states: “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,” the Bill states.

Moira Levy

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Notes from the House is an independent online publication that tracks and monitors Parliament’s role in fulfilling its constitutional responsibilities to improve the lives of South African citizens. Published by Moira Levy with the support of the Claude Leon Foundation.

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