Same-sex marriage in South Africa

As you may have heard in the news, on 1 December the South African Constitutional ruled that the wording of South Africa’s Marriage Act discriminates in an unconstitutional way against the rights of homosexual couples. The government now has to rewrite the legislation to allow same-sex marriage. The judgment is of course exciting and a triumph of South Africa’s ambitious constitution. But the text of the judgment raises some interesting questions relating to whether individual marriage officers with contrary religious beliefs should be required to marry same-sex couples.

South Africa’s constitution prohibits discrimination on any of many grounds: race, gender and religion obviously; but also sexual orientation. It has thus been largely a matter of time till a case of this nature reached the Constitutional Court, and the conclusion that homosexual marriage should be allowed isn’t much of a surprise (it was a unanimous verdict). The issue has been briefly bemoaned by a few conservative religious and other organisations, but has not generated anything near the controversy that it has in, say, the US.

The judgment summary has some (in my opinion) very wise words on the issue, such as:

The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomforting.

The judgment also outlines two approaches that could be taken to fix the offending legislation: firstly, the simple inclusion of the words “or spouse” after the parts of the Marriage Act referring to “husband” or “wife”. Alternatively, a much more complicated scheme would have the legislature pass a new marriage act (the Reformed Marriage Act) which recognised all marriages regardless of gender, religion, race or culture of the couple. The old act would not be repealed, but rather renamed the Conventional Marriage Act. Religious organisations would then be free to chose under which act they wished to conduct marriages – and further acts could be added to the range of options to cover, say, traditional Hindu or Islamic weddings.

Somewhat controversially, Parliament has been given a year to complete its reform of marriage law, and so chose from the above (or other equivalent) options. If this isn’t done, the former option will automatically come into effect, with the understanding that marriage officers may cite serious religious objections to avoid having to officiate over same-sex marriages.

The last sentence above highlights what I think is an interesting example of the contradictions and trade-offs inherent in the field of human rights. The ruling clearly recognises the right of same-sex couples to marry, in South African society as a whole; but for individual marriage officers, marriage rights are trumped by the right to religious freedom and the resultant issues of conscience.

Now this makes a lot of practical sense – there will be other marriage officers willing to perform the marriages, and external reform is not forced on those religious groups still against same-sex marriage. I’m not sure, though, that it makes as much strictly logical sense.

Discrimination on the basis of sexual orientation appears in the Constitution in the same way as, say, discrimination on the basis of race. However, I’d like to see a marriage officer try to refuse to marry, say, an Indian couple, or a mixed-race couple, on the basis that his/her religion prohibits marriages of that sort. I can only imagine the resulting uproar and legal process. So even after the proposed legal remedies, the right to marriage of same-sex couples is still subject to the conscience of the marriage officer, where the right to marriage of couples distinctive for any other reason is not.

Of course, one could say that it is only same-sex marriages (as opposed to any other) that raise major religious objections. But it seems a little tricky to base a legal principle merely on an “accident” of what beliefs certain South African religious groups happen to hold. I, however, can’t think of a better way of justifying the ruling.

So I wonder if the Constitutional Court judges are secretly praying that no-one chooses to open a whole new can of worms by filing a case that civil marriage officers should be required to marry same-sex couples on request.