With the promulgation and commencement of the Civil Union Act in 2006, South African law makers took a historic step towards creating a more inclusive society free from discrimination on any grounds including, amongst others, gender and sexual orientation.
The Civil Union Act, Act 17 of 2006, made it possible for people of the same gender to be allowed to enter into civil unions, thereby allowing them to get legally married in South Africa. That being said, the Civil Union Act did have some drawbacks – most notably of which being Section 6, which read as follows:
“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 ground 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.”
In the weighing up of various Constitutional rights, many argued that Section 6 granted legal ‘permission’ to marriage officers to discriminate against same-sex unions, thereby violating the couple’s Constitutional right to Equality. Others argued that this Section protected the marriage officer’s Constitutional rights to Freedom of Religion, Belief and Opinion.
Numerous legal battles and almost one and a half decades later it seems as though the Constitutional right to Equality - with included therein the right not to be unfairly discriminated against - was ultimately victorious. On Thursday, 22 October 2020, President Cyril Ramaphosa signed the Civil Union Amendment Act into law, which deletes Section 6 of the Civil Union Act. This means that marriage officers at the Department of Home Affairs would no longer be allowed to refuse to solemnise a marriage between people of the same gender on the grounds of their own conscience, religion or beliefs.
The signing of the Civil Union Amendment Act has been met with quite a bit of controversy but controversy alone will not do much to change, repeal or amend this new Amendment Act.
In looking forward, the pressing question currently on people’s minds is whether private businesses (such as wedding venues, for example) could one day be told that they too may no longer refuse to assist people of the same gender in realising their right to be wed.
Exciting times are surely ahead – we will keep you updated on the developments.