Conscientious Objection to Performing Same-Sex Marriage in South Africa

Abstract

This article considers whether public servants should be exempt from South Africa’s equality provisions and anti-discrimination legislation in solemnizing same-sex marriages. In order to deal with this question, the article analyses the treatment of freedom of conscience and conscientious objection by comparing the solemnization of same-sex marriage by public servants, with another public service: that of terminations of pregnancy. While each situation will inevitably turn on the particular circumstances of the case, I argue that there should be a content-neutral guiding principle (as well as consistency) in dealing with these situations. The issue in each situation is narrowed to whether a civil servant’s personal convictions can override the state’s secular obligations in providing a service, and whether there is room for a qualified right to conscientious objection. By analysing the matter in this way, it is clear that the unqualified statutory exemption clause in South Africa’s Civil Union Act is constitutionally objectionable.