Journal Article

Conscientious Objection to Performing Same-Sex Marriage in South Africa

Helen Kruuse

in International Journal of Law, Policy and the Family

Volume 28, issue 2, pages 150-176
Published in print August 2014 | ISSN: 1360-9939
Published online June 2014 | e-ISSN: 1464-3707 | DOI: https://dx.doi.org/10.1093/lawfam/ebu001
Conscientious Objection to Performing Same-Sex Marriage in South Africa

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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.

Journal Article.  14321 words. 

Subjects: Family Law ; Law and Society ; Politics and Law ; Marriage and the Family

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