SALRC Marriage Law Proposals Threatens Pastors & Monogamous Marriage

Freedom Of Conscience:
At present ‘same-sex unions’ take place under the Civil Union Act, 2006. Religious marriage officers can choose only to register in terms of Marriage Act and not the Civil Union Act, and thus may not currently be coerced to participate in ‘same-sex marriage’. In 2020 the right of state marriage officers to conscientiously object to solemnising same sex marriage was removed. Under the new SALRC proposal, there is no distinction is made between the state officers, religious and proposed tribal marriage officers (S10(1)). Thus all can be coerced by threat of lawsuit and the Bill allows for criminal penalties for infringement. In answer to a query the SALRC clarified they had not intended such interpretation of criminal penalties but the unclear wording is likely to be exploited by LGBT activists. Prof Elsje Bonthuys who motivated the removal of conscientious objection rights for state marriage officers. Disturbingly the ‘Scope of the Marriage policy’ by the Department of Home Affairs (DHA) (point 2) states “Indiscriminative solemnization of all marriages by marriage officers (DHA and possible religious marriage officers). Thus they explicitly leave open coercion of religious marriage officers as a possibility. The initial draft of the abortion law included a conscientious objection clause, which was later removed and the government passed regulations infringing on this, followed later by SA Health Professions Council policy against it. The SALRC has had two years to draft a protections for marriage officers being fully aware of the controversy of the matter. They did not.

Polygamy:
While at present only men married under the ‘Recognition of Customary Marriage Act’ can take more than one wife, the SALRC bills (S6(4)) would allow any man to take a second wife with the consent of his first. Since statistics show year on year fewer South Africans are marrying under the Customary Marriage Act, so polygamy is reducing and if trends continue would likely eventually be phased out. The SALRC proposal would extend polygamy to all. Comment:

1) Many women who married with the expectation of a monogamy could easily be coerced into accepting polygamous marriage under duress of threatened divorce, denial of marital benefits or domestic violence.

2) The existing Customary Marriage Act allows polygamy only in the circumstance of historic traditional culture. If this proposal without cultural context became law, a legal equality challenge could argue in favour of a woman having more than one husband and together polyamory or a network of relationships.

Polygamous marriages tend to have the social impacts of jealousy for the wife, have less intimate relationships, increase risk of poverty and less father input for children.

‘Cohabiting And Concubinage’
The proposals would effectively give equal status to those who are married (i.e. a man and woman who have covenanted to an intended lifelong union) and those who are cohabiting and have assumed permanent responsibility for supporting each other S1(xvii). Comment: 1. This will likely accelerate the decline in the marriage rate, which had dropped by a third between 2006 and 2014, reducing the multiple social benefits of marriage over cohabitation. 2. The definition fudges the boundary between those who are married and not married. Only marriage is ‘permanent responsibility’. Those who cohabit ‘until you annoy me or someone better comes along’ are not taking ‘permanent responsibility’. 3. The proposals provide for state sanctioned concubinage. 4. It would be possible for a man to take both a wife and state registered concubine.

MARRIAGE BY PROXY: The SALRC bill allows 6(2) marriage by proxy. The marriage officer must only ask the proxy and not the party (likely the woman), whether consent has been granted. Such a procedure is fraught with risk of forced marriages and people being married fraudulently without consent. Ironically this clause is motivated to accommodate recognition of Muslim religious marriage ceremonies where the father represents the bride – after a lawsuit brought by the Women’s Legal Centre, which has not yet been fully resolved. Nevertheless, most Muslim organisations responding have asked for a separate Marriage Act and not a Single Marriage Act. The consequences could backfire and the Women’s Legal Centre could score an ‘own goal’ hurting women’s rights. There are a number of less risky legal alternatives to accommodate recognition of such Muslim marriages, which include a separate Act, incorporation into the Recognition of Customary Marriages Act or the use of a less risky clause in the principal Marriage Act. It is argued that those advocating the change need to put forward their preferred alternative(s) and all alternatives need to be considered and given due attention in a separate consultation process.

Destruction Of Marriage:
Radical LGBT activists have long admitted the real intention of using so called ‘same-sex marriage’ is not equal rights, but as a means to coerce all others into affirming their relationships and secondly to destroy the institution of marriage altogether. The first proposal removes the word ‘marriage’ altogether. Thus the state would not even recognise the distinction between ‘marriage’ and ‘living together’ or between ‘marriage’ and ‘homosexual unions’.

Constitutional Interpretation:
Firstly, the SALRC paper and its proposed bill preface assume a completely wrong and upside down interpretation of the Bill of Rights, which is being popularised with repetition by radical activists. Correctly interpreted the Constitution allows for a very broad scope of civil liberty, accommodation of diverse traditions and wide latitude for the legislature to pass laws not infringing on these. The preamble attempts to make it sound as if the Constitution motivates and requires such a proposal which it in fact it does not. The proposal would in fact seriously infringe on conscience rights. The valid issues motivating the proposal could be resolved with much less radical social impacts.

Secondly, the Constitution makes special provision for traditional customary and religious marriage law 15(3), which then take place within the balancing protections of that cultural tradition. Allowing the same provisions for all in mainstream marriages would likely have an entirely different legal interpretation – resulting in equality challenges to incrementally push the boundaries to destroy marriage as an institution.

The proposals would change or replace twenty six other laws relating to marriage with massive potentially unforeseen social impacts.

Procedural Problems Of Hasty Process
Normally, the SALRC does a research and consultation process with civil society and then puts forward two or more different proposals, which various organs of state then consider, sometimes shelve or put forward an entirely different proposal. In this instance, firstly the two proposals are almost identical and thus not really a choice. Secondly they would have wide reaching social impacts that have not been assessed. Thirdly, the entire process is being undertaken in parallel with the Department of Home Affairs in an apparent attempt to fast track the process with a Marriage Policy to Cabinet by 31 March 2021 and cabinet approval of a final bill by 31 March 2022. Department Home Affairs undertook consultation in 2019 before the SALRC process was complete, which seemed biased in favour of radical activists. This parallel process undermines the independence of the SALRC process and that of the Department of Home Affairs. Comparatively, a high court and an appeal court could not have a trial on the same case at the same time because both would be prejudiced by the other.

Comment
Most pastors who are endangered by this proposed legislation are caring “people persons” rather than political or legal thinkers. The discussion paper is 300 pages of legal language. https://www.justice.gov.za/salrc/dpapers.htm I have summarised some consequences above. Please forward to your pastor but you need to speak up yourself. The sad reality is that radical gender ideology activists have got this far, because the majority have remained silent. We can do so no longer.

On the positive side Minster of Home Affairs Dr Aaron Motsoaledi has made public statements indicating he is a God fearing person, but has apparently not yet applied the fear of God to this bill.

Have Your Say
Please send your comment to the SALRC pvanwyk@justice.gov.za and the Minster of Home Affairs Dr Aaron Motsoaledi c/o Mamokolo.Sethosa@dha.gov.za and his department at Marriagepolicy@dha.gov.za