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Irrational accommodation : conscience, religion and same-sex marriages in South Africa : notes

  • Journal Title: South African Law Journal
  • Volume: Volume 125
  • Issue:  Issue 3
  • Publication Date: 2008
  • Pages: 473  - 483
  • Authors:  Elsje Bonthuys;
  • ISSN: 02582503
  • Abstract:  In the Fourie judgment the Constitutional Court framed the issue of conscientious objection in the Civil Union Act as a compromise between the marriage officers' constitutional rights of freedom of religion, belief and opinion, on the one hand (s 15 of the Constitution of the Republic of South Africa, 1996), and the right of same-sex couples to be free from discrimination on the grounds of sexual orientation (s 9 of the Constitution) on the other hand. This note examines the particular way in which this balance was struck in the Civil Union Act and argues that, although religious and other beliefs were accommodated, this was done in a completely arbitrary manner which erodes the very rights to equality that the Act purports to extend to same-sex couples. It does so by comparing, first, the accommodation of different kinds of marriage officers and, secondly, the different kinds of objections that are accommodated by the legislation.
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