Civil Union Bill Public hearings

SELECT COMMITTEE SOCIAL SERVICES
24 November 2006
CIVIL UNION BILL PUBLIC HEARINGS

Chairperson: Ms J Masilo (ANC – North West)

Documents handed out:
Civil Union Bill [B26B-2006]
Submission of the point Working Group to the National Council of Provinces on the Civil Union Bill

SUMMARY
The Committee’s received an oral submission by the Joint Working Group, which represented a national network of lesbian and gay, bisexual and transgender organizations. While the organisation felt that many of their concerns had already been addressed, they still had some concerns related amongst others the fact that religious ministers could only perform solemnisations once their institutions had applied to do so. Members were concerned about the organizations apparent insistence that Government should force even those officers who objected to perform civil unions, and tried to explain that Parliament had tried to accommodate all views on an issue that had generated much public outcry. The presenters agreed with Mr Setona who said that there was a need for greater public awareness around how one balanced ones religious convictions with the Constitution, which was South Africa’s supreme law

MINUTES
Joint Working Group submission
Ms Fikile Vilakazi Advocacy officer of OUT LGBT Wellbeing, and Mr Jonathan Berger of the Lesbian and Gay Equality Project made the submission o behalf of the Joint Working Group (JWG) which represented a national network of lesbian and gay, bisexual and transgender organizations that were located in different provinces across the country. While the JWG felt that key changes to the original Civil Union Bill ensured that the version passed by the National Assembly was, in the most part, in accord with the requirements and the values of the Constitution they still had three main concerns related to clauses 5, 6 and 8 of the Bill.

Discussion
Mr T Setona (ANC Free State) requested the presenters to explain where they understood faith to reside - within four walls or within the spirit of an individual.

Ms Vilakazi responded that there were many different points of view on this matter. Individuals believed differently, had different beliefs around how faith operated and where their “holy space” was situated. She thus felt that there was thus no conclusive conceptual explanation to the member’s question.

Mr B Tolo (ANC Mpumalanga) thought it necessary to explain to the presenters that the initial Bill that came from Cabinet contained provisions related to domestic partnerships. Parliament however only wanted to address one matter with the proposed legislation – the Constitutional Court judgment. It felt that all other things could be addressed later. He conceded that the Marriage Act of 1961 contained many loopholes and assured the presenters that Government recognised that. In order to address the presenters’ concerns it would be necessary to strengthen the Marriage Act. He felt that in the presenters’ concerns around exclusion of domestic partnerships they were “preaching to the converted” because Government understood that it had to address that particular shortcoming.

Ms Vilakazi pointed out that the JWG’s submission also reflected that the organisation did not believe that domestic partnerships and civil unions should be legislated together. In their submission they were merely drawing attention to the urgency with which domestic partnerships needed to be provided for within the law. The domestic partnership bill should be dealt with very early in 2007 as people in such relationships found themselves in very vulnerable positions.

Mr Tolo sought clarity on the JWG’s concerns around Clause 5. He agreed that the Church should regulate itself but Government should also be weary of situation where it created “renegade priests”. He said that being a member of the African National Congress he had been schooled in democracy and thus believed that while minority views could not be ignored, those of the majority should prevail. If a church therefore ruled that it did not want to solemnise same sex marriages it should be allowed to prohibit its officials to do so.

Mr Berger wondered whether one would call Archbishop Tutu a renegade priest – the Anglican Church was deeply divided on the issue yet the Archbishop was very supportive of it. He wondered whether it would be fair to then curtail religious officers’ own freedom of religion to conduct gay and lesbian marriages if they chose to do so simply because their beliefs were at odds with those of their denominations. The JWG felt that it was not up to the State to decide what debates should or should not be held within religious denominations. Freedom of religion was not only about the institution but also about how people within that religion exercised what they understood that religion to be.

Mr Setona felt it necessary to point out that he was an atheist who was sensitive to a person who believed in a god. He had gone through many submissions on the Bill and found that the religious community felt that faith did not reside within four walls but in the spirit. One thus did not merely have to be on the “roll call” of a church to be considered a Christian. He said that Clause 5 reflected a compromise lawmakers had made – it was reflective of the sensitive and emotive nature of an issue that had polarised society. He agreed that the matter related to the supreme law of the country but reminded the presenters that one also had to be cognisant of people’s beliefs. He felt that forcing churches to solemnise gay and lesbian marriages would encroach on their right to religious beliefs and creed.

Mr Berger found it very difficult to understand the “religious significance of conducting a civil process that enjoyed no religious recognition whatsoever”. As far as he was concerned if that union was not recognised as a marriage within that religion it could not have any religious significance whatsoever. The JWG had already made quite a massive compromise in as far as they were reasonably satisfied that a civil servant who, on the basis of a sincere religious objection, objected to doing the solemnisation could be exempt from doing so. He pointed out that while the JWG would prefer that there was no freedom of conscience clause, the organisation could live with it. He emphasised that the content of such a clause was what was of importance.

Mr Berger pointed out that a freedom of conscience clause presented a potential slippery slope. He invited members to ponder whether a Christian nurse who felt that her religion forbade homosexuality would be allowed to refuse medical attention to a young homosexual man who had contracted a sexually transmitted infection and subsequently approached the a public service facility she worked at for the medical care he was entitled to. He said that many similar examples could be made. He cautioned that one had to take care about how far one allowed a freedom of conscience clause to go. The JWC would accept a freedom of conscience clause provided it could not perceived as discriminatory to gay and lesbian couples.

Mr Berger pointed out that religions were not democracies. Many religious people would confirm that the processes within religions and the manner in which issues were decided within some denominations were “certainly nothing akin to what happened in Parliament”. One should not equate what happened in religion with a deliberative process that listened to all the congregants and made decisions on that basis.

Mr Setona agreed that it was pointless to pass a law that could not be implemented but did not think that it was appropriate to legislate the matter either. South Africa being a secular State, he did not that it should be seen as interfering with the Church as an institution. He thought that members were faced with the challenge of raising public consciousness around how one balanced ones religious convictions with the Constitution which was South Africa’s supreme law.

Mr Berger supported what Mr Setona said and was not sure whether there was much difference between his position and that of the JWG. He agreed that the State should not interfere with religion but pointed out that in the JWG’s opinion that was exactly what Clause 5 of the Bill proposed. The clause effectively said that the State supported the current status quo within the Church and would not allow any debate on the issue. The JWG felt that it was not appropriate for the State to decide whether that debate took place or not nor, or how it was resolved.

Ms Vilakazi agreed that public education was very important and said that the public hearings that had taken place had opened up the debate and had taken the country to a “new political landscape” where it realised that the Constitution and legislation was far above people’s attitudes. It had also highlighted the gaps that existed around legislation and pubic education. The public needed to be informed and engaged on matters related to what the Constitution meant and how one dealt with those rights enshrined within it that might appear to be conflicting. One also had to look at how one could ensure that freedom of conscience as well as e.g. the equality clause co-existed. The gap in public education needed urgent attention and the JWG was committed to that process. It believed that the process needed to be taken to communities so that it could be spoken about in a language that ordinary people would understand.

Mr Berger added that the Minister of Home Affairs should be obliged to ensure that every municipality had at least one person who was able to solemnise civil unions and pointed out that a right that could not be implemented was meaningless.

Mr M Sulliman (ANC Northern Cape) felt that the proposal that the Minister should ensure that each municipality had at least one marriage officer who would be able to solemnise gay and lesbian marriages was a tall order. He pointed out that one could lead a horse to water but one could not make it drink. He wondered whether the JWG’s proposal implied tat people should be forced to perform this function.

Mr Berger said that the JWG was not suggesting that anyone should be forced to perform the solemnisations. If there was a freedom of conscience clause (in the terms the organisation suggested) then this it would be allowed to whoever chose to invoke it .He said that the words “all reasonable steps” were important because it gave the Minister some leeway. If it was not reasonably possible the Minister would not be falling foul of Clause 6.2.

Mr Tolo said that the presenters had to be aware that the vast majority of South Africans were vehemently opposed to the legislation. Government had decided to balance the situation so that everyone could be accommodated. He wondered whether the JWG would not be able to live with the provisions of Clause6 which allowed marriage officers to object to solemnising civil unions o grounds of conscience.

Mr Berger said that it was important to recognise that nothing short of a amendment to the Constitution would satisfy many if not most of the people who had been against the proposed legislation. The JWG was not prepared to see their rights compromised in a way that did not make anyone happy. He reminded members that the benchmark should be what the Constitution required.

By agreeing that a freedom of conscience could be permitted the JWG said that the legislation should be implemented in a way that did not unfairly discriminate against lesbian and gay people. There was nothing wrong if churches sought an exemption against performing any civil unions provided that it was in accordance with what they believed and not simply a case of homophobia. The JWG felt that this compromise adequately reflected the balance of rights as set out in the Constitution.

Mr Setona thanked the presenters and stakeholders for their input. He pointed out that the Committee’s duty was to interact with them without fear or prejudice.

At the Chairperson’s request Ms A Qikane (UDM Eastern Cape) thanked everyone who had participated, especially the groups who had presented that day and the day before. The Committee would finalise their deliberations on that coming Monday and the debate in the National Council of Provinces would take place on 28 November.

Mr Sulliman added that everyone who had made presentations would be welcome to attend the debate.

The meeting was adjourned.