Religious Marriage Officers to Potentially Solemnise All Marriages

by Adv Nadene Badenhorst
23 June 2021

The Department of Home Affairs has published a draft Marriage Policy for South Africa, for public comment by no later than 30 JUNE 2021.

The purpose of the Policy, the first of its kind in a democratic South Africa, is to “establish a policy foundation for regulating the marriages of all persons that reside in SA”. The Policy itself will be followed by a single Marriage Act, “that will enable South Africans and residents of all sexual orientations, religious and cultural persuasions to conclude legal marriages that will accord with the principles of equality, non-discrimination, human dignity and unity in diversity, as encapsulated in the Constitution”.

From a religious freedom point of view, FOR SA is concerned that the draft Marriage Policy will potentially force religious marriage officers (of whatever faith) to solemnise marriages which are contrary to their, and/or their organisation’s, religious convictions and beliefs.

FOR SA therefore strongly encourages all churches and religious institutions, and all religious marriage officers, of whatever faith, to submit comments on the draft Marriage Policy.

Click here to download a template submission that FOR SA has prepared for organisations and individuals who want to make a submission respectively, which you are welcome to use “as is” or to assist you with points for a submission which you may want to prepare with additional comments or an alternate focus.

Submissions can be emailed to the Director-General: Department of Home Affairs at [email protected] by no later than 30 JUNE 2021 (the deadline for submissions).

FOR SA’s concern regarding the Policy

The draft Marriage Policy has made news headlines mainly because of its proposal that – in the name of equality – polyandry (i.e. one woman marrying more than one man) be legally recognised as a form of marriage (pp 48-49).

Since same-sex marriage is already recognised as marriage in our law, the knock-on effect of this would be that – again, in the name of equality – a man should be able to marry more than one man, or a woman more than one woman, or any combination of men or women could be legally married to each other.

As pointed out above, from a religious freedom point of view however, FOR SA is concerned that the Policy will potentially force religious marriage officers (of whatever faith) to solemnise marriages which are contrary to their, and/or their organisation’s, religious convictions and beliefs.

In this context, FOR SA has made a comprehensive submission to the Department, arguing that the constitutional rights of religious marriage officers should be explicitly protected in any Marriage Act that will ultimately be adopted and that they should have the right to only solemnise marriages that conform to their / their religious organisations’ convictions and beliefs. This is in line with the position in other Western democracies around the world (including Canada, the United Kingdom, Australia and New Zealand), and indeed countries on the African continent, which explicitly protect the religious freedom rights of religious marriage officers and the organisations to which they belong.

Without explicit protection, a Christian marriage officer could – for example – be forced to solemnise a polygamous marriage; a Hindu marriage officer could be forced to solemnise a Muslim marriage; or a Muslim marriage officer could be forced to solemnise a same-sex marriage even if that had to go against the marriage officer’s/mosque’s beliefs, etc.

If this were to happen, the likely result will be that many religious marriage officers (of which there are 14,945 in the country) will feel that they have no option other than to hand in their marriage licences. This will put massive strain on the already burdened resources/capacity of the State (which has only 1,418 civil marriage officers in its employ).

Policy proposal contradicts Minister’s assurance to religious leaders:

During 2019, the Department held ministerial dialogues with various stakeholders (including religious leaders) to obtain input on the proposed Marriage Policy, with FOR SA being invited as a panellist on two occasions.

During the ministerial dialogues with religious leaders in both Johannesburg and Cape Town, the Minister of Home Affairs (Dr Aaron Motsoaledi) addressed religious leaders with regard to the proposed Marriage 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.

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 his response, the Minister categorically assured religious leaders that he was not there to impose on them to change their religious beliefs. In the Minister’s own words, “I want to assure you that freedom of religion is assured”.

Against the above background, it thus comes as a great surprise that the DHA, in its Paper:

– Openly and unreservedly condemns religious marriage officers’ refusal to solemnise civil unions on grounds of religious beliefs. It describes this as “unfair” (p 11), “discriminatory” (pp 22 and 33), and “discriminatory behaviour disguised as religious doctrine” (p 29), “subjective and tends to lend itself to discriminatory behaviour” (p 52).

– As a result, proposes the “non-discriminative solemnisation of marriages” by all marriage officers, i.e. serving “all members of the public who wish to marry, without exception” (the implication being that religious marriage officers will be compelled to do so, even if this violates the religious convictions and beliefs of the religious marriage officer and/or the religious organisation to which he/she belongs) (p 52). (An alternative suggestion in the Paper is that religious ministers only perform a religious, rather than a legal, function. Marriage parties must approach the Department themselves to officially register their marriage after the ceremonial component has been concluded.)

These statements smack, with respect, of a lack of insight and appreciation regarding the nature, content, scope and importance of the constitutional right to religious freedom (s 15) and related rights. Indeed, it shows a complete disregard for the Constitutional Court’s explicit finding in Minister of Home Affairs v Fourie (the case that legalised same-sex marriage in 2005) 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]). (own emphasis)

The Paper’s proposal that religious marriage officers be forced by law to marry all members of the public, also directly contradicts the Minister’s verbal assurance to religious leaders – during the ministerial dialogues – that the Department would not force them to solemnise marriages that go against their and/or their religious institutions’ convictions and beliefs.

Process leading up to the (draft) Policy, and next steps:

It is important to note that the Department’s process to develop a Marriage Policy is separate and distinct from the process by the South African Law Reform Commission (SALRC) to investigate the possibility of a single Marriage Act that would govern all the different types of marriages in South Africa, and to prepare a draft law in this regard – although the process will merge at some point in the future.

The status quo is that:

– The SALRC recently released a Discussion Paper (including two draft Bills) for public comment by 17 May 2021. It is now considering the input received.

The Department’s draft Marriage Policy is open for public comment until 30 June 2021. In the meanwhile, on 28 June 2021, the Minister of Home Affairs will be hosting a national colloquium to receive input from stakeholders on the draft Policy. (FOR SA has been invited as a panellist at this high-level meeting where the Minister is the keynote speaker). The Department’s stated aim is to then submit the draft Policy to the Minister for approval by 30 November 2020, whereafter the proposed Policy needs to make its way through various channels (including Cabinet) before it can be tabled to Parliament for approval by 31 March 2023.

FOR SA has raised, with both the SALRC and the Department, our concern regarding the duplication of process – not only from a taxpayer point of view, but also because many citizens and organisations may confuse the concurrent processes, or be under the false impression that it is (already) one process and that if they comment on the one, they do not need to comment on the other.

The two (concurrent, but separate) processes will likely lead to much misunderstanding amongst the public, and likely result in either the SALRC or the Department receiving public input on their process that is also relevant to the other, but which the other side does not receive.

As a further result, meaningful public participation in one – or both – processes will be seriously undermined. This in itself could potentially open up the Bills (and the processes in relation thereto) to judicial review.

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Adv Nadene Badenhorst

Adv Nadene Badenhorst is an Advocate of the High Court of South Africa. She serves as FOR SA’s full-time Legal Counsel.

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