Civil Union Bill: deliberations

HOME AFFAIRS PORTFOLIO COMMITTEE
31 October 2006
CIVIL UNION BILL [B26-2006]: DELIBERATIONS

Chairperson: Mr H Chauke (ANC)

Documents Handed Out
Summary of domestic partnerships report
Summary of people’s public hearings and submissions in the provinces from 20 September to 9 October 2006

SUMMARY
The Chairperson reported that the main purpose of the meeting was to go through the submissions made during public hearings and to deal with some of the constitutional issues coming out of the Bill. A draft report was tabled, which contained only the summary of submissions made at the public hearings. The Committee heard the views of legal advisors from the Departments of Home Affairs and Justice, the South African Law Reform Commission, The Office of the Chief State Law Advisor and the Parliamentary Legal Advisory section. At the outset some members requested that the deadline date for a decision on the Bill, set for 3 November, be extended. Others believed there was no point. The deliberations proceeded.

The Department of Justice reported that it did not support an amendment to the Marriage Act. Their drafters believed that the drafting correctly reflected the instructions from the Constitutional Court, and that the separate but equal approach had given the same status, freedoms and entitlements to single sex marriage and heterosexual marriages. The Parliamentary legal advisors and the State Law Advisor disagreed that this had been achieved. Nothing in the Bill suggested that the union was a marriage and this was in violation of the dignity and equality provisions of the Constitution. Civil partnerships applied only to same sex couples, whereas domestic partnerships were not limited. The Chief State Law Advisor believed that both the separate regime and the provisions on solemnization were problematic and unconstitutional. Members questioned why no definition of gays and lesbians had been inserted in the Bill, and the reasons for the separation between civil unions and marriage.

The South African Law Reform Commission summarised its report on domestic partnerships. This report arose from the Department’s instruction to investigate the Marriage Act. It indicated that no other international system correlated exactly with South Africa because of the specific wording relating to equality. Firstly, the Commission had recommended that the Marriage Act be amended to apply to all couples. In an attempt to meet the objections to same sex marriages, it then recommended that the Marriage Act be renamed, and that civil marriage officers be designated under this Act. At the same time an Orthodox Marriage Act should be enacted, applicable only to heterosexual couples, giving state sanction to religious ceremonies, so that parties could choose under which Act to be married. Religious marriage officers could opt for designation under either Act. The Commission then also recommended that a Domestic Partnerships Act be enacted to provide for legal recognition and regulation of registered and unregistered partnerships, between either heterosexual or same sex couples. It discussed the proposed details for registration, termination, property and inheritance rights, and matters relating to children born of the partnership. Unregistered partnerships were also to be covered, which provided that parties could apply to Court for recognition, and for orders relating to maintenance, property, and inheritance. Polygamous partnerships would also be included.

The Chairperson summarised those issues arising from the public hearings and written submissions that he thought were critical and needed further engagement. The public was generally opposed to same sex marriages. There was a proposal that another term, not “marriage”, be used to describe the same sex unions. Some parties were of the opinion that the Bill was unconstitutional. Others believed that Clause 11 was misleading, if not unconstitutional. Gays, lesbians and trans gender groups not in support of it. The State and Parliamentary Law Advisors did not support it in its present form. Some disagreed with the title of the Bill. Some had called for a referendum. Others called for protection of the traditional institution of marriage by amending the Constitution. Still others were of the opinion that marriage was in God’s hands and not in the hands of Parliament. Traditional leaders argued that the Bill was contrary to African culture and would disrupt the property and inheritance regimes. There were issues of adoption, pensions, and population development. The political parties were in disagreement, although the ANC were generally in support of the proposed legislation. A member added that the Committee must also consider the consequences of a failure to legislate at all, and the possible unintended consequences of a reading in of the word “spouse” to the Marriage Act.

Members discussed the desirability of applying to the Court for an extension of time to prepare legislation. Some members were in support of an application but others wished to avoid the “reading-in of words to the Marriage Act, and believed that no new issues would emerge. The Chairperson asked Members to extract the most important issues, and to discuss these with their parties. The deliberations would resume the following day.

MINUTES
The Chairperson started by informing the committee that since the full report on the public hearings and submissions was not ready, the Committee should rather begin to deliberate upon the constitutional points raised. He had asked various legal advisors to be present. The advisors who addressed the Committee included Adv LT Sebelemetja and Adv Y van Aswegen from the Department of Home Affairs (DHA), Ms L Louw and Mr Johan de Lange, from the Department of Justice and Constitutional Development (DOJ) Ms C Pienaar from South African Law Reform Commission (SALRC), Mr Enver Daniels, Chief State Law Advisor and Mr M Vassen, Parliamentary Legal Advisor. The Chairperson noted that the Report before the Committee covered only the submissions made hearings in the provincial hearings, and not submissions presented to the Committee in parliament. The latter report was still being compiled.

Procedure of the meeting
Kgoshi Morwamoche (ANC) suggested that the deadline for Friday be shifted so that adequate time was given to engage with the Department of Justice, to go through the Bill clause by clause, and to engage with the full report on all the submissions.

Mr F Beukman (ANC) remarked that it was essential that Members see the full report before considering the Bill clause by clause.

Ms S Kalyan (DA) was in disagreement with the extension proposed by Kgoshi Morwamoche. She argued that the Bill would be reintroduced to the Committee again, with or without recommendations from the NCOP, so Members should not waste unnecessary time. Moreover, any extension would put on pressure on the NCOP, who normally had to be briefed and to make comments or changes within two weeks.

Mr S Swart (ACDP) added that he understood that the Minister had convened meetings with stakeholders. He asked the Chairperson why this was done, in view of the fact that Parliament was still in the process of dealing with the Bill. He asked if the Bill was likely to be withdrawn.

The Chairperson replied that he was not aware of this situation and he would look into it.

Mr J Sibanyoni (ANC), Mr M Swart (DA) and Mr M Sikakane (ANC) suggested that since the legal advisors were present, they should be asked how to proceed in terms of the judgment.

Mr S Swart was concerned with the implications of the Committee’s decision on the 44 pieces of legislation that would be affected by the matter, and expressed the opinion that the Committee must move as expeditiously as possible.

Adv Y van Aswegen replied that the legal advisors from the Departments were not in a position to comment on the constitutionality of the Bill, and that the State Law Advisors should rather address these questions.

The Chairperson replied that he would ask them to respond later. The meeting should proceed to discuss some of the issues.

Constitutionality of the Bill
Ms L Louw reported that the Fourie case had said that the current definition of marriage was unconstitutional. Moreover, despite the impact on the 44 other pieces of legislation, DOJ was of the view that it was important to meet the deadline by passing legislation before 1 December. Even if not all the bases were covered, they could be amended as soon as possible after that date.

Ms Louw added that it was not clear from the judgment whether there should be a change to the Marriage Act or the definition of marriage in both the common law and the Act. As a result the policy DOJ recommended was not to amend the Marriage Act. She emphasised that this was not intended to marginalise any sections of the society. Paragraph 122 of the judgment pointed to the fact that there could be a separate but equal approach that gave the same status, freedoms and entitlement to single sex marriage as existed in heterosexual marriages. The model set out in the Civil Union Bill contained a separate status but did not create a completely different legal regime. There were direct links to the Marriage Act and its regime, such as clause 4 of the Bill. This provided that marriage officers designated by Section 2 of the Marriage Act, acting under the powers conferred upon them by that Act, could solemnize civil partnerships or marriages in terms of the Bill. Moreover the partners had the option to call their union a marriage, by virtue of Clause 11 of the Bill.

Mr M Vassen said that when considering whether the Bill was in line with the judgment it must be remembered that the Constitutional Court had ordered that there be legal recognition of same sex couples. The Court had rejected the arguments that granting the right to marry to same sex couples would affect the right of marriage granted to heterosexual couples. It had also said that the argument that same sex marriages would devalue marriage was demeaning and was not consistent with the values of dignity and equality. Parliament was given wide discretion to remedy the situation but it was cautioned not to create a system that on the face of it looked equal but which, in being implemented, would create new avenues for discrimination. Guidelines were further given that when creating a remedy Parliament should promote dignity, equality and the advancement of rights and freedoms.

Mr Vassen said that, apart from Clause 11, there was nothing in the Bill that suggested that the union was a marriage. In the opinion of the Parliamentary legal advisors, the Bill created an institution called a civil union. Which, although on the face of it appearing to be a marriage, was in violation of the dignity and equality provisions; did not advance any rights and freedoms, and had not applied equal treatment to the tangible and intangibles of marriage. The legal advisors did not believe that the Bill would pass constitutional muster.

Mr M Sikakane asked Mr Vassen what specifically in the Bill was not equal to the heterosexual marriage regime.

Mr F Beukman (ANC) asked the other legal advisors to comment on Mr Vassen’s reference to Section 9 of the Constitution.

Ms Louw replied that the right of equality was indeed important but it should also be weighed against other rights such as religion, sexual orientation and the right to marry. In her view the Bill had done this successfully and had managed to strike a balance that did not specifically violate the equality clause.

Mr S Swart asked Mr Vassen to comment on the constitutionality of Clause13.

Ms Kalyan remarked that because of the divergent legal views it appeared that the Committee had not progressed any further, and were almost back to square one.

The Chairperson replied that this was not quite correct. He would like the legal advisors to deal with the constitutional issues, as the Committee clearly did not wish to adopt a Bill that would subsequently be declared unconstitutional.

Ms C Johnson (ANC) noted that civil partnerships were only for same sex couples, whereas domestic partnerships were not limited in this way. She asked the legal advisors whether the dispensation of deferential treatment would not in itself lead to marginalisation, and what would be the legal basis for the creation of the differential treatment.

Ms Louw replied that the reason why civil partnerships were exclusively for same sex couples, while domestic partnerships were open to all other couples, was that the Court judgment ordered Parliament to provide specifically for a regime that would give the same status, responsibilities and entitlements of marriage to same sex couples as applied to heterosexual couples. The domestic partnerships had resulted from the decision in the Robinson case. The legal advisors did not regard this as a discriminatory difference.

The Chairperson asked for clarification on the politics of the two regimes of domestic partnership and the civil union. He further requested whether the legal advisors had had the chance of comparing these relationships with similar relationships set up internationally and how the Department of Justice had come to draft the Bill in this way.

Ms Louw replied that the drafters had looked at various information, including international law and sources and the South African Law Reform Commission research. She argued that the confusion around civil unions had arisen from making comparisons with other countries. Most countries recognised civil unions, but referred to them as domestic partnerships. Most countries had begun to recognize domestic partnerships between same sex and heterosexual couples around the 1980’s. It should be noted that most countries did not recognise marriages between same sex couples. The Department had decided to use the term “civil union” although the effect was much the same as it was internationally.

Mr J de Lange added that the purpose of Clause 11 was to ensure that for all intents and purposes the union created consequences and status equal to those of a marriage. Whether the union was referred to as a marriage or as a civil union was, in his view, purely academic.

Mr S Swart appreciated the reference to international sources. He asked whether the legal advisors had looked at the Australian example of same sex couples, which created more of a positive right, as opposed to the current example, which created a negative right. If this had not been examined, he would appreciate it if the advisors would look at the position and revert to the Committee with their views.

Ms Louw replied that the advisors had not looked at the New Zealand position in detail because of New Zealand’s situation was still in the process of being negotiated. Moreover, the situations in South Africa and New Zealand differed since South Africa was obliged to abide by a court judgment that had laid down guidelines. For this reason, the positive and negative rights debate was not considered entirely relevant

Mr W Skhosana (ANC), Ms Kalyan and the Chairperson all enquired what name would be given to the union, especially in light of Clause 11, that required the marriage officer to refer to the civil partnership as a marriage, at the request of the parties during the solemnization.

Mr M Swart (DA) and Mr Sibanyoni remarked that there were various options for marriages open in South Africa, including traditional marriages. Mr Sibanyoni suggested that a possible name should be “same partners marriage”

Mr de Lange replied that Clause11 was a legal nicety. It was included for the reading-in formula that once solemnization had occurred, a marriage had occurred, so that for all intents and purposes it was a civil partnership / union in law. Asking the couple whether they wished to have it solemnized as a marriage or as a civil union had no legal significance.

Kgoshi Morwamoche asked why the bill did not carry a definition of gays or lesbians as he understood this was a requirement in the court order.

Ms Louw replied that in no legislation, including the 44 pieces of legislation that would be directly affected by the outcome of the Bill, was there a satisfactory definition, and thus it was decided to leave out a definition.

Ms I Mars (IFP) asked for clarification why there should be a separation between civil unions and marriages.

Ms Louw replied that the Court had said that there could be two regimes, provided that they were equal.

Mr Vassen said that there would have to be a rational basis for to the exclusion of same sex couples from marriage. One of the major reasons was that describing the union as a marriage would offend the religious sector. The Bill had tried to avoid this, but in doing so had created a system that opened the doors to marginalisation. This was precisely what the court had cautioned against.

The Chairperson asked the opinion of the Chief State Law Advisor in regard to everything that had been discussed so far.

Mr E Daniels replied that his office was in a bit of a difficult position, because normally the procedure would be that his office would interrogate the respective departments and ask for their explanations why the particular clauses were inserted or were drafted in this way. Because of time constraints they could not do so and now had to make decisions “in the vacuum”. He agreed with the views of Mr Vassen. He found two areas very problematic. The first related to the “ separate but equal: regime. If the marriage officer had to ask the couple whether they wanted their union to be called a marriage or a civil union, this was in itself demeaning. Secondly, the State had a duty not to discriminate. The provision that allowed the public marriage officers to refuse to solemnise the union on the basis of their own conscience was surely unconstitutional as it created discrimination on the ground of sexual orientation.

Ms Johnson remarked that Parliament had had the same problem with the Termination of Pregnancy Act, where nurses were given the option of not performing an abortion on the basis of conscience. She asked if there was a similar connection.

Mr Daniels replied that indeed there was some analogy, but the fundamental difference was that some people felt strongly that abortion destroyed life, which was the reason why that option was made available. The same arguments did not apply to Civil Union Bill, and so the provisions were clearly discriminatory and therefore unconstitutional.

Briefing by SA Law Reform Commission on its report on Domestic Partnerships
Ms C Pienaar stated that her mandate was not to debate whether the Bill was constitutional or not. She had been asked to take the Committee through the report on domestic partnerships. She tabled a summary and the recommendations emanating from the SALRC. She indicated that the term “domestic partnerships” was used throughout the report to denote all established permanent life partnerships, between heterosexual or same sex couples, which existed outside the institution of marriage. She stated that the Commission had done extensive international research but that none of the models had a constitutional dispensation exactly similar to South Africa’s. The Commission had relied also on the judgments in the Robinson and Fourie matters. It was clear that the Commission would need to reconcile the constitutional rights to equality of same sex couples with the religious and moral objections to recognition of such relationships. The Commission had previously canvassed options of civil unions and separation of civil and religious aspects of marriage, but had now abandoned those two options.

Essentially the recommendations in relation to permanent same sex life partnerships that the Marriage Act must be amended. It believed that a definition must be inserted into that Act to make it applicable to all couples wishing to marry. This would comply with the Fourie judgment and the equality provisions of the Constitution. However, the Commission noted that there were strong objections from many parties. Attempts must therefore be made to accommodate religious sentiments as far as constitutionally possible. The civil union that applied in other countries was not based upon provisions similar to the equality clause and therefore this type of solution would not meet South Africa’s problem.

The Constitution did allow for specific protection of religious practices under Section 15(3). The Commission therefore recommended, as a second choice, that an Orthodox Marriage Act be enacted, in addition to the amendment to the Marriage Act, and for the renaming of the Marriage Act as “The Reformed Marriage Act”. The meaning of “orthodox” was “confirmation of closely followed traditional beliefs and practices of a religion”. This Orthodox Marriage Act would apply only to heterosexual couples, but was generic to all religions. It would provide state sanction to religious solemnization. Marriage officers would be able to decide under which Act they wished to be designated. Civil marriage officers would be designated under the Reformed Marriage Act.

The Commission had also considered the lack of legal protection for those in domestic partnerships who did not wish to or could not be married. It recommended that a Domestic Partnerships Act be enacted to provide for legal recognition and regulation of registered and unregistered partnerships, between either heterosexual or same sex couples. There would be a simple registered procedure before a registration officer falling under the Department of Home Affairs. The partnership would be terminated on death or through another procedure. If there were minor children the registered partners would need to apply to Court for a termination order. Parties would be able to make written agreements about division of property on termination. The male parent of a child born to a heterosexual partnership would be deemed to be the father of the child.

The Commission had made recommendations on unregistered partnerships to avoid economic hardship to a person who had been dependent on another. The Domestic Partnerships Act should therefore also provide that even where the relationship had not been registered, one or both partners could approach a Court for assistance, when the partnership was terminated, in resolving any disputes on the financial consequences of the former relationships. The Court would have the discretion to make a maintenance order or an intestate succession order. It could also order a division of property. Legal consequences of termination of polygamous partnerships should also be regulated, including maintenance after separation, intestate succession and property division. The Court would have discretion to consider the circumstances of all of the existing relationships to ensure an equitable outcome.

The Chairperson asked whether the SALRC had followed procedure in producing this report. .

Ms Pienaar replied that this report had resulted from the Department of Home Affairs’ request that SALRC examine the Marriage Act. These issues were a natural consequence of that investigation.

Critical Issues and way forward
The Chairperson summarised those issues arising from the public hearings and written submissions that he thought were critical and needed further engagement. The public was generally opposed to same sex marriages. There was a proposal that another term, not “marriage”, be used to describe the same sex unions. Some parties were of the opinion that the Bill was unconstitutional. Others believed that Clause 11 was misleading, if not unconstitutional. Gays, lesbians and trans gender groups did not support it. The State and Parliamentary Law Advisors did not support it in its present form. Some disagreed with the title of the Bill. Some had called for a referendum. Others called for protection of the traditional institution of marriage by amending the Constitution. Still others were of the opinion that marriage was in God’s hands and not in the hands of Parliament. Traditional leaders argued that the Bill was contrary to African culture and would disrupt the property and inheritance regimes. There were issues of adoption, pensions, and population development. The political parties were in disagreement, although the ANC were generally in support of the proposed legislation.

Mr S Swart asked the legal advisors to comment on the chances of obtaining an extension, considering that Parliament would have to look at 44 pieces of legislation.

Ms Kalyan was also in support of an extension, as she was of the opinion that Members would have to go through the 5 000 submissions received and come to a consensus. She asked why only some of the submissions had been highlighted in the report.

Mr Sikakane was opposed to any extension, as he thought this would serve no purpose other than to stall, and it was most unlikely that any new issues would emerge.

Kgoshi Morwamoche did not agree with an extension, as this would have the effect that the Constitutional Court would read in the words “spouse” to the Marriage Act. He suggested that the Committee must debate the Bill clause by clause, whilst at the same time incorporating beneficial views from the reports compiled.

The Chairperson agreed. There had been numerous changes to the programme, and he wanted to stick to the Friday 3 November deadline. If, having engaged with all the issues, the Committee still failed to come up with a solution, then maybe Parliament should ask for an extension, but this should be the last resort.

Mr Sibanyoni remarked that the Committee had covered most of the constitutional issues. However, he was still concerned that it had not fully exhausted the question of the consequences of a failure to legislate, and what effect the Court’s reading in of the word “spouse” would have. One possibility was that young same sex children would be able to marry, since the Minister was able to grant permission to young children if their parents would not consent.

Mr Sikakane suggested a straight removal of the clause giving the marriage officer the option of refusing to perform the ceremony on the ground of conscience.

The Chairperson added that another point requiring a decision was the definition of marriage. He suggested that the members must sit down with their parties and identify the critical areas, so that the Committee could move faster on its deliberations.

Mr Sikakane remarked that he found it strange that some people wanted to “own” the definition of marriage to the point of excluding others from using it.

Ms Johnson remarked she understood the need to relay the submissions verbatim, but the language used in the Report was not sensitive. She cited specific examples.

The Chairperson cautioned that the Report was yet to be adopted by the committee and should not be referred to as “a Committee Report” This could lead to misconceptions and accusations.

Mr M Swart remarked that basically there were two issues that could be extracted from the report: namely the moral and the constitutional. The Committee must choose which of the five available options to proceed with after dealing with the constitutional issues.

Mr Sibanyone asked which groups of people were opposed to the use of the word marriage for same sex couples.

The Chairperson replied that the objections had covered more or less the whole community spectrum, including both Christian groups and individuals.

The Chairperson asked Members to extract the most important issues, and to discuss these with their parties. The deliberations would resume the following day.

The meeting was adjourned.