Marriage is deeply meaningful, entwined with religious and cultural beliefs and practices. It was not invented by lawmakers, and predates the existence of the state.
The department of home affairs has embarked on the momentous project of reforming South African marriage law. Its Green Paper on Marriages in South Africa was published in May. The Constitution demands the fundamental rights and freedoms of all people enjoy equal protection – no small task given South Africa is one of the most diverse societies in the world.
But it is not for the state to define or prescribe to society what marriage is.
Our constitutional democracy is founded on human dignity, the achievement of equality and the advancement of human rights. In the context of marriage, this means minimum state interference and maximum recognition and protection of diversity. It is questionable whether this laudable goal can be achieved by one-size-fits-all marriage legislation.
In Minister of Home Affairs v Fourie [2005 ZACC 19], the constitutional court tells us that the “hallmark of an open and democratic society is its capacity to accommodate and manage differences of intensely-held world views and lifestyles in a reasonable and fair manner”. Practically, this means allowing “different concepts about the nature of human existence to inhabit the same public realm … in a manner that is not mutually destructive and … enables government to function in a way that shows equal concern and respect for all”.
The department should restrict itself to providing legal recognition and protection to deserving relationships and attaching appropriate legal consequences (for example related to patrimony and children) to these. The actual meaning of marriage is best left to religious, cultural, and secular organisations or groups to decide for themselves.
In MEC for Education, KwaZulu-Natal v Pillay [2007 ZACC 21], the constitutional court emphasised the affirmation and reasonable accommodation of diversity, stating religious and cultural groups should be able to live in accordance with their beliefs and practices and without fear of reprisal.
In the context of solemnising and registering marriages, this means marriage law must give equitable recognition to the right to freedom of religion, belief and opinion. This can be achieved by carefully balancing rights in the least restrictive manner to ensure the maximum enjoyment of fundamental rights and freedoms by all persons.
The department has put forward four policy proposals in respect of the solemnisation and registration of marriages: (1) indiscriminative solemnisation of marriages by all marriage officers without exception; (2) indiscriminative solemnisation of marriages by public servants; (3) broadening of the scope for the designation of marriage officers from all social groups (that is, all religious denominations, traditional councils and the LGBTIQ+ community); and (4): solemnising marriages without marriage officers.
Option one is constitutionally indefensible. In the Fourie judgment, the constitutional court recognised the “constitutional value of acknowledging diversity and pluralism in our society” which informs the right not to be “forced to subordinate … to the cultural and religious norms of others”, practically meaning that “no minister of religion could be compelled to solemnise a … marriage if such … marriage would not conform to the doctrines of the religion concerned”.
Although the state must provide services “impartially, fairly, equitably and without bias” to all people, this does not mean public employees can be equated with the state itself or forfeit their individual constitutional rights when entering state employment. Considering the constitutional court’s stance in the Fourie judgment, option two disregards the principle of reasonable accommodation and fails to recognise and protect the basic human rights of state-employed marriage officers.
The purpose of the constitutional principle of reasonable accommodation is to protect diversity and maximise the enjoyment of fundamental rights and freedoms in a pluralistic society, and it can used for indiscriminately protecting all state-employed marriage officers from being forced to solemnise any marriage that violate their sincerely held beliefs whether religious, cultural or secular.
From a diversity and human rights perspective, options three and four are preferable to options one and two.
By enabling people who are members of any religious, cultural or secular social group to become marriage officers, option three accommodates and advances diversity in South African marriage law. For this reason, the Law Reform Commission similarly recommends increasing the different categories of marriage officers to provide all sectors of society with marriage officers able to solemnise marriages in accordance with the religious, cultural or secular views of that sector.
These marriage officers should enjoy equal protection against solemnising marriages that violate their conscience or understanding of what marriage is. Given the highly personal nature of the meaning of marriage, this approach is laudable, encapsulating the state’s constitutional duty to reasonably accommodate the fundamental rights of all marriage officers.
Option four reduces the solemnisation of marriage to a state administrative function, and properly construed is a registration of the fact that a marriage had taken place. Because the envisioned marriage officer does not perform any ceremonial functions, this approach is as gender, culture and religion neutral as possible and should not pose any threat to fundamental rights. Couples will be required to approach the department to have their marriage registered after the conclusion of the ceremonial component. A registering officer would hardly be offended by performing a task analogous to registering a birth.
Our Constitution states “South Africa belongs to all who live in it, united in our diversity”. The constitutional court exhorts us that “our future as a nation depends in large measure on how we manage difference” and where, in the past “difference has been experienced as a curse, today it can be seen as a source of interactive vitality”. We can only hope the department of home affairs takes as its guidepost the celebration of diversity, and that the model chosen for marriage officers gives effect to this constitutional imperative. In doing so, we can fortify our constitutional dispensation, allowing South Africa to stand united in all its diverse beauty.