Conscientious objection to performing same-sex marriage in South Africa
- Authors: Kruuse, Helen
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129186 , vital:36228 , https://doi.org/10.1093/lawfam/ebu001
- Description: 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.
- Full Text: false
- Authors: Kruuse, Helen
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129186 , vital:36228 , https://doi.org/10.1093/lawfam/ebu001
- Description: 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.
- Full Text: false
Sailing between Scylla and Charybdis: Mayelane v Ngwenyama
- Authors: Kruuse, Helen
- Date: 2014
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54118 , vital:26392 , https://www.ajol.info/index.php/pelj/article/view/112096
- Description: Mayelane v Ngwenyama 2013 4 SA 415 (CC) is arguably the most important judgment concerning the recognition of customary marriages in recent times. This article attempts to unpack some of the many issues that arise from the case, namely: (a) the practical difficulties associated with ascertaining living customary law and the problems of identifying legal versus social norms; (b) the meaning of consent as a requirement of a customary marriage; (c) the implications of the case for equality between multiple wives in a customary marriage, and as between wives across customary marriages of different cultural traditions; and (e) the implications of the case for equality considerations more broadly. While the authors sympathise with the court in respect of the complex decision before it, it questions the Court's method and result, specifically for the equality rights of a second (or further) "wife" in a Vatsonga customary marriage. The authors suggest that the issues should be put to democratic deliberation by the legislative arm, rather than leaving courts in the unenviable position of having to decide these matters.
- Full Text:
- Authors: Kruuse, Helen
- Date: 2014
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54118 , vital:26392 , https://www.ajol.info/index.php/pelj/article/view/112096
- Description: Mayelane v Ngwenyama 2013 4 SA 415 (CC) is arguably the most important judgment concerning the recognition of customary marriages in recent times. This article attempts to unpack some of the many issues that arise from the case, namely: (a) the practical difficulties associated with ascertaining living customary law and the problems of identifying legal versus social norms; (b) the meaning of consent as a requirement of a customary marriage; (c) the implications of the case for equality between multiple wives in a customary marriage, and as between wives across customary marriages of different cultural traditions; and (e) the implications of the case for equality considerations more broadly. While the authors sympathise with the court in respect of the complex decision before it, it questions the Court's method and result, specifically for the equality rights of a second (or further) "wife" in a Vatsonga customary marriage. The authors suggest that the issues should be put to democratic deliberation by the legislative arm, rather than leaving courts in the unenviable position of having to decide these matters.
- Full Text:
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