Civil Union Amendment Bill, 2018: Parliamentary submissions
24 October 2018
The Civil Union Amendment Bill, 2018 was introduced as a Private Member’s Bill by Ms Carter of COPE and was, subsequently, adopted by the Portfolio Committee on Home Affairs.
The Bill proposes only one amendment which is the repeal of Sec 6 of the Civil Union Act 17 of 2006 (“the Act”):
Marriage officer not compelled to solemnise civil union
6. A marriage officer, other than a marriage officer referred to in section 5 [a religious marriage officer] may in writing inform the Minister that he or she objects on the grounds 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.
In addition to the endorsement of this Amendment, the HSF recommends that the word ‘shall’ be substituted for ‘may’ in Sec 4(1) of the Act. This ensures that civil marriage officers cannot be exempt from solemnising Civil Unions of same-sex couples. As it stands, about 420 of the total 1130 civil marriage officers have been exempt in terms of Sec 6.
Allowing a functionary of the state this discretion amounts to a negation of the State’s overarching role in regulating both its own behaviour and that of its functionaries, and could amount to an endorsement by the state of unfair discrimination. A clear distinction is drawn between civil and religious marriage officers. It is not the view of the HSF that religious marriage officers should be compelled to solemnise marriages that may offend the rites, tenets or doctrines of their religion.
The HSF’s submission went beyond the scope of the Bill and proposed that the legal framework governing marriage in South Africa be re-evaluated. The time is ripe to not only update the old terminology used in the Marriage Act but also to consider the integration of the multiple pieces of legislation that govern civil unions, marriages between opposite-sex couples, customary marriages and Muslim marriages.
To avoid the conflation between religious marriages and civil marriages, one suggestion is that civil marriages be performed by civil marriage officers only. This is a bold undertaking but ultimately could facilitate the adoption of a far clearer, more inclusive model.
Mira Menell Briel, Legal Researcher and Kimera Chetty, Legal Researcher, Helen Suzman Foundation.
This article first appeared as an HSF Brief.