CIVIL UNION ACT AMENDMENT BILL Private Members Bill

CIVIL UNION ACT AMENDMENT BILL Private Members Bill: Civil Union Amendment Bill 1

BACKGROUND • Prior to our Constitutional Democracy, the LGTBI community suffered a harsh fate and were branded as criminals and rejected by society as outcasts and perverts. • The South African legal system at the time did not recognise same-sex relationships or same-sex marriages. • The notion of marriage as defined by the common law and statutes was based on principles of monogamy and heterosexuality-principles originally affirmed by Christian theology. Private Members Bill: Civil Union Amendment Bill 2

• Based on the concept of marriage as it was defined within Christendom, any recognition of same- sex unions in South Africa was forbidden, and sexual relations between persons of the same-sex were characterised as abnormal and criminal behaviour. • Partners in such relationships were excluded from the rights and obligations which automatically applied to partners in civil marriages, despite the fact that they functioned in a similar manner as traditional married families. • The advent of our Constitutional Democracy (underpinned by our Bill of Fundamental Human Rights) created a constitutional and legal framework that allowed historically marginalised groups, including gays and lesbians, to challenge the ideological hegemony that dominated South African politics. Private Members Bill: Civil Union Amendment Bill 3

• Following a number of court challenges and judgements, the Constitutional Court in the matter of the Minister of Home Affairs v Fourie, ruled unanimously that same sex couples have a constitutional right to get married; • that it was unconstitutional for the state to provide the benefits of marriage to opposite-sex couples whilst denying same-sex couples; and • that this state of affairs infringed upon the right to equality before the law and the right not to be discriminated against by the state on grounds of sexual orientation; and Private Members Bill: Civil Union Amendment Bill 4

• declared, as a consequence, that the common law definition of marriage was inconsistent with the Constitution and invalid to the extent that it did not permit same-sex couples to enjoy the status and the benefits coupled with responsibilities it accorded to heterosexual couples. • This landmark ruling, authored by Justice Albie Sachs and delivered on the 1 st of December 2005, ordered that the declaration of invalidity be suspended for twelve months from the date of the judgment to allow Parliament to correct the defect Private Members Bill: Civil Union Amendment Bill 5

THE CIVIL UNION ACT, 17 OF 2006 • As a consequence, Parliament adopted the Civil Union Act, 17 of 2006 which came into operation on 30 November 2006. • The Act extended the recognition of marriage rights to same-sex partners and provides samesex partners the right to enter into a civil partnership known as a civil union. The Act creates the only means by which same-sex couples may formalise their union. Private Members Bill: Civil Union Amendment Bill 6

• Importantly, the Preamble to the Act notes: a) That section 9(1) of the Constitution provides that everyone is equal before the law and has the right to equal protection and benefit of the law; b) That section 9(3) of the Constitution provides that the state may not unfairly discriminate 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 Private Members Bill: Civil Union Amendment Bill 7

c) That section 10 of the Constitution provides that everyone has inherent dignity and the right to have their dignity respected and protected; d) That section 15(1) of the Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion; e) That 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; and Private Members Bill: Civil Union Amendment Bill 8

f) That the family law dispensation as it existed after the commencement of the Constitution did not provide for same-sex couples to enjoy the status and the benefits coupled with the responsibilities that marriage accords to opposite sex couples. Private Members Bill: Civil Union Amendment Bill 9

THE COMPLAINT • As a duly elected public representative I received complaints from members of the public that samesex couples seeking the services of marriage officers to solemnise their marriage were being turned away from Home Affairs offices as there were no marriage officers in the employ of the state that were prepared to solemnise same-sex marriages. Private Members Bill: Civil Union Amendment Bill 10

• EXAMPLES • A same sex couple tried to get married in Port Elizabeth but to no avail and eventually had to travel to Grahamstown • Another couple tried to get married in Chatsworth, Commercial Rd in Durban and eventually tried Tongaat, but they were refused in all three offices. Instead they were called derogatory names and insulted by public servants. Private Members Bill: Civil Union Amendment Bill 11

• Section 6 of the Civil Union Act provides that designated marriage officers in the employ of the state, may in writing, inform the Minister that they object on the ground of conscience, religion and belief to solemnising civil unions between persons of the same sex whereupon that marriage officer shall not be compelled to solemnise such civil unions. • In a written reply to my enquiry then Minister of Home Affairs advised in writing that of then 1130 designated marriage officers in the employ of the state 421 had sought and been exempted from solemnizing same-sex couple marriages. Private Members Bill: Civil Union Amendment Bill 12

• Home Affairs revealed that only 28, 6% (117 of the 409) of Home Affairs branches have marriage officers who are willing to marry same‐sex couples under the Civil Union Act. EC 10 / 59 FS 10/58 GP 17 / 57 KZN 29 / 68 LIM 16 / 61 MP 10 / 58 NC 9 / 22 NW 10 / 22 WC 10 / 34 Private Members Bill: Civil Union Amendment Bill 13

SECTION 6 AND THE CONSTITUTION • Closer scrutiny reveals that the Constitutionality of section 6 of the Civil Union Act is questionable on the grounds that it offends the rights of same-sex couples to equality and human dignity as entrenched in sections 9 (Equality) and 10 (Human Dignity) of the Constitution. • In fact, section 6 of the Act appears to be in direct conflict with the objectives of the Civil Union Act and undermines the purpose of the Act: that is, to remove discrimination on the ground of sexual orientation and to uphold the constitutional rights to equality and dignity. Private Members Bill: Civil Union Amendment Bill 14

Section 6 of the Act provides that: • “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 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. ” • The marriage officers envisaged in section 6 of the Civil Unions Act are those that 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, 25 of 1961. Private Members Bill: Civil Union Amendment Bill 15

• For example, a devotedly Christian civil servant may not object to solemnising a marriage for an opposite-sex couple who are atheist or Muslim; and a marriage officer who has racist views, may not object to marrying an interracial opposite-ex couple. • It is thus clear that civil servants may only object to solemnising unions under the Civil Union Act, and moreover, only to same-sex unions under the Act; and that the only ground for objection is the sexual orientation of the couple – which is in violation of section 9(3) of the Constitution Bonthuys: ‘Irrational accommodation: conscience, religion, and same sex in South Africa Private Members Bill: Civil Union Amendment Bill 16

• It is posited that section 6 of the Civil Union Act limits the right of same-sex partners to enter into a civil union, and that this limitation cannot be justified in an open and democratic society. • The current provision also appears to contravene Chapter 10 of the Constitution which provided that public administration must be governed by the democratic values and principles enshrined in the Constitution, including that services must be provided impartially, fairly, equitably and without bias. Private Members Bill: Civil Union Amendment Bill 17

THE SOLUTION • The solution lies in the repeal of section 6 of the Civil Union Act which allows a marriage officer in the employ of the state to inform the Minister (of Home Affairs) that he or she objects on the grounds of conscience, religion, and belief, to solemnising a civil union between persons of the same sex. Private Members Bill: Civil Union Amendment Bill 18

• In my question to then Minister I also enquired whether, given the questionable Constitutional status of Section 6 she would introduce amending legislation to repeal section 6. Unfortunately, the Minister did not reply in the affirmative nor take the initiative in this regard. • This precipitated the Private Member’s Bill Private Members Bill: Civil Union Amendment Bill 19

PUBLIC PARTICIPATION • In response to the statutory advertising of the Bill and the call for representations, some 101 representations were received of which 84 indicated their support of the Bill (the repeal of section 6) and 17 did not. • All submissions received were made available to the Committee including a summarised table. Private Members Bill: Civil Union Amendment Bill 20

“Freedom and equality are proud achievements of an inclusive and democratic South Africa. While it is true that our Republic has reached a number of milestones in this regard, a number of inequalities and obstructions to freedom persist, some of which have been unfairly provided for in law. ” Private Members Bill: Civil Union Amendment Bill 21

DESIRABILITY • If we are indeed a Constitutional Democracy • If the Constitution is indeed Supreme • If we indeed practice the rule of law • I put it to you that there is no alternative but to expunge section 6 of the Civil Union Act In the circumstances I urge the Committee to favourably consider the desirability of the Bill and to recommend its approval to the National Assembly. Private Members Bill: Civil Union Amendment Bill 22