By Advocate Nadene Badenhorst, Legal Counsel of FOR SA

A ministerial dialogue with religious leaders took place in Johannesburg on 26 September, and in Cape Town on 23 October, to discuss the development of a marriage policy in South Africa. Both events were well attended and participated in by hundreds of religious leaders from across the faith spectrum, with Freedom of Religion South Africa (FOR SA) participating in both events.

The purpose of the proposed policy is to pave the way for a single marriage law that would consolidate all the different laws that currently regulate the different kinds of marriages in South Africa, and also deal with the marriages that are currently not regulated by any law, into one piece of legislation. (For more about the purpose of and reasons for the proposed marriage policy, see our previous article and video clip).

In both Johannesburg and Cape Town, the Minister of Home Affairs (Dr Aaron Motsoaledi) addressed religious leaders with regard to the proposed policy and answered (some of) their questions. He explained that the policy would recognise that as South Africans, we live in a diverse society where people have different cultures, religions and gender orientations. As such, the policy would give effect to the constitutional principles of equality, “no discrimination” and human dignity.

Implications for religious marriage officers

At both events, it was evident that a major question and concern for many religious leaders from across the faith spectrum, was whether government would – through the new policy, and ultimately the new marriage law – force religious marriage officers to solemnise unions or marriages that do not accord with their religious convictions and beliefs (e.g. polygamous, or same-sex unions or marriages)?

In this regard, FOR SA clearly stated that the starting point for any new policy, or change to existing policy, is the Constitution. Sections 9, 15, 18 and 31 of the Constitution grant religious organisations a right to institutional autonomy. This means that religious organisations may not be forced to act against their conscience and belief, including the solemnisation of any union or marriage that goes against their conscience, religion and belief. This was also confirmed by the Constitutional Court in Minister of Home Affairs v Fourie (the case that legalised same-sex marriage in 2005), in which the Court stated that “acknowledgement by the state of the right of same-sex couples to enjoy the same status, entitlements and responsibilities as marriage law accords to heterosexual couples, is in no way inconsistent with the rights of religious organisations to continue to refuse to celebrate same-sex marriages” (para [98]). FOR SA thus appealed to the Minister not to force religious marriage officers to act against their conscience, religion and belief as this would violate the Constitution.

In reply to the questions and concerns in this regard, the Minister assured religious leaders that he was not there to impose on religious leaders, or to change their religious beliefs. In the Minister’s own words, “I want to ensure you that freedom of religion is assured”. For many religious leaders, this assurance may have been cold comfort however – particularly in light of the Minister’s concluding statement (during his speech in Cape Town) that the Department will not force religious leaders to solemnise marriages against their conscience, religion and belief, but that “someone is going to take you to Court to force you”.

The meetings were consultative in nature, and no decisions were taken. Similar dialogues are being held with other groups, including gender and human rights activists (which has already taken place on 30 August) and with academics and think-tanks (on 14 November, where FOR SA will again be one of the panel speakers). FOR SA will continue to monitor and report on developments.

Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.



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