Civil Union Amendment Bill - Letter to The President

The President

Mr Cyril Ramaphosa

Republic of South Africa

Per email: 

Sir

Re: Civil Union Amendment Bill

Section 6 of the Civil Union Act (2006) exempts marriage officers from solemnizing same sex marriages based on their conscience, religion and belief. Section 6 is consistent with the constitutionally protected rights set out in sections 15 and 18 of the Constitution.

 The Civil Union Amendment Bill plans to repeal this exemption for all state employed marriage officers and magistrates arguing that the only possible reason for objecting to solemnizing same sex marriages is the sexual orientation of the couple which is in violation of section 9(3) of the Constitution. The Bill has recently been passed by the National Council of Provinces (NCOP) and now awaits validation by your esteemed Office. 

We are of the view that repealing Section 6 of the Civil Union Act (2006) offends the right to dignity as enshrined in section 9 of the Constitution; the right to human dignity as enshrined in section 10 of the Constitution; the right to freedom of conscience, religion and belief as enshrined in Section 15 of the Constitution and the right to freedom of association as set out in Section 18 of the Constitution.

 It places believers in the onerous position of having to choose between adhering to deeply held religious beliefs and upholding the requirements of law.

In Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) the Constitutional Court said:  “However religion is not always merely a matter of private individual conscience or communal sectarian practice …Religion is not just a question of belief or doctrine. It is part of a way of life, of a people’s temper and culture…religious and secular activities are, for purposes of balancing, frequently as difficult to disentangle from a conceptual point of view as they are to separate in day to day practice… the State should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law…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… For many believers, their relationship with God or creation is central to all their activities…”

When affirming the rights of same-sex couples to have their union formally and legally solemnised Justice Sachs in his judgment said that “the principle of reasonable accommodation could be applied by the State to ensure that civil marriage officers who had sincere religious objections to officiating at same-sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience.” (Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others, [2005] ZACC 19)

The "conscientious objection clause" contained in Section 6 of the Civil Union Act gave effect to this recommendation by the Constitutional Court.

Section six embodies the spirit of our Constitution, which celebrates rich diversity of cultures and beliefs. Deleting section 6 of the Civil Union Act also deals a blow to the preamble of our Constitution which declares that: “South Africa belongs to all who live in it, united in our diversity.”

We accordingly appeal to your esteemed Office to refer the Bill back to Parliament for reconsideration.

Thank You

Yusuf Patel

Secretary General

21 July 2020

The United Ulama Council of South Africa (UUCSA) is an umbrella body of major Muslim theological formations in South Africa. It has a national footprint in all of the nine provinces of South Africa.