Pierre de Vos, Constitutionally Speaking
11 March 2019
Many churches or other religious institutions discriminate unfairly against fellow South Africans on the ground of sexual orientation because its members have decided that the god they believe in requires them to do so. A recent High Court judgment suggests this is not permissible because the Constitution prohibits churches and other religious institutions from unfairly discriminating against gays and lesbians.
Churches have been in the news lately for all the wrong reasons. Globally the Catholic Church continues to be mired in an appalling paedophile scandal. Closer to home a pastor was recently caught fraudulently claiming to have raised somebody from the dead while another pastor fraudulently claimed that he had gone to heaven to take selfies (which he allegedly sold to congregants).
This appalling behaviour led to renewed calls for legal intervention to protect individuals against the harm caused by such churches and some of the unscrupulous ministers and pastors who run them. However, the harm inflicted by some churches and other religious institutions against women, and gays and lesbians, is seldom mentioned when the possibility of regulating such institutions is raised. According to this view, defrauding gullible congregants is beyond the pale and requires legal intervention, but discriminating against fellow citizens is fine and requires no intervention.
Be that as it may, whether it is to protect individuals against fraud or against discrimination, the legal or constitutional regulation of churches and other religious institutions raises complex questions. Last week the High Court handed down an innovative judgment in the case of Gaum and Others v Van Rensburg and Others which may hint at a shift in judicial thinking on the topic. Although the judgment is not as well argued as it could have been, it raises questions about the legality of discrimination perpetrated against gays and lesbians by other religious institutions.
It all started in 2015 when the General Synod of the Dutch Reformed Church (who during apartheid was often called the National Party at prayer) made a momentous decision, agreeing to allow individual ministers (dominees) of the church to solemnise same-sex marriages and also to allow non-celibate gays or lesbians to be ordained as dominees or elders in the church. In other words, the decision allowed individual dominees to stop discriminating against gays and lesbians and also ended the church’s discrimination against gay and lesbian dominees.
The decision was met with outrage by some members of the church, and after a sustained campaign by more conservative dominees the General Synod met again towards the end of 2016 and voted to revert to the churches’ previous discriminatory position towards gays and lesbians. As the court remarked, the reversal of the 2015 decision “transpired pursuant to a four day meeting, prayer, much debate and fierce argument”.
Laurie Gaum, who is ordained as a minister in the Dutch Reformed Church, and other members of the church (including Gaum’s father) challenged the validity of the 2016 decision in the High Court. The applicants advanced two arguments. First the applicants argued that the 2016 decision did not follow the church’s own rules and was therefore invalid. Second, they argued that the decision unfairly discriminated against gays and lesbians on the basis of sexual orientation and was therefore in breach of section 9(3) of the Constitution.
For various technical reasons the High Court held that the procedure followed by the church to try and overturn its 2015 decision was inconsistent with the rules of the church and thus invalid. The 2016 decision was thus reviewed and set aside. This means that the original 2015 decision of the General Synod (which permits individual dominees to stop discriminating against gays and lesbians) is in fact still in force.
Strictly speaking, this should have been the end of the matter and there was no need for the court to consider whether the 2016 decision unfairly discriminated against gays and lesbians. As the 2016 decision was invalid and set aside, there was no valid decision that could be tested to determine whether it unfairly discriminated against individuals on the ground of sexual orientation. Curiously the court nevertheless proceeded to consider whether the Dutch Reformed Church decision unfairly discriminated against gays and lesbians.
On the face of it, this part of the case presented the court with a choice between enforcing the right not to be discriminated against guaranteed in section 9(3) of the Bill of Rights, on the one hand, and the right to freedom of religion contained in section 15(1), on the other. When should a court choose the right to equality and when should it choose the right to freedom of religion?
However, the court rejected this view and stated that there is “no balancing of rights required” in this case. I suspect the court got this wrong. However, this does not mean that the 2016 decision of the General Synod of the Dutch Reformed Church did not unfairly discriminate against individuals on the ground of sexual orientation.
The judgment itself suggests that whenever the doctrines of a church or other religious organisation are challenged in court because it discriminates against individuals or infringes on some of their other rights, it places the court in a difficult position.
If the court chooses to rule against the church or religious institution, it is in effect ruling that the religious beliefs are nonsense (or, at the very least, less important than other considerations) and that these beliefs must therefore yield to other, far more important, interests.
Think of cases where a court orders Jehovah’s Witness parents to allow their child to get a blood transfusion. Jehovah’s Witnesses believe that the Bible prohibits ingesting blood and that Christians should not accept blood transfusions or donate or store their own blood for transfusion. They believe this is a non-negotiable religious stand and that those who respect life as a gift from God do not try to sustain life by taking in blood, even in an emergency. When a court orders that this belief should be overridden because of the potential harm to the child trumps respect for religious freedom, it chooses the life of the child over the religious freedom of the parents.
But how, asked the High Court in the Gaum case, does a court evaluate religious beliefs to decide if other interests should trump such beliefs? religious beliefs are largely subjective, and courts do not always have the knowledge to evaluate claims of religious belief. Judges may even consider some religious beliefs to be “bizarre, illogical or irrational”, but nevertheless warrant protection.
Courts should therefore be reluctant to become involved in doctrinal disputes of a religious character. But as the Jehovah’s Witness example demonstrates, getting involved in doctrinal disputes are unavoidable. In some cases, courts must and will limit religious freedom rights to advance other, more pressing, concerns or to protect the marginalised and the vulnerable who are the victims of harmful religious beliefs and practices. Although the High Court denies this, in such cases courts are required to strike a balance between different rights, in each case allowing one right to yield to another.
This does not mean that it was not correct for the High Court to find that the Dutch reformed church unfairly discriminated against gays and lesbians in contravention of section 9(3) of the Bill of Rights. As the High Court judgment pointed out, the starting point to decide whether unfair discrimination occurred, is to look at the position in society of the group complaining of discrimination, and at the extent of the harmful impact of the discrimination on this group. The more vulnerable the group and the more severe the impact of the discrimination on them, the more difficult it will be for the church to justify its discrimination.
The High Court correctly held in this regard that the LGBTIQA+ community suffered discrimination in the pre-constitutional South Africa and still suffers discrimination today. The Court quoted Justice Edwin Cameron who wrote in this regard:
The sting of the past and continuing discrimination against both gays and lesbians lies in the message it conveys, namely, that viewed as individuals or in their same-sex relationships, they do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. This denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity, namely that all persons have the same inherent worth and dignity, whatever their other differences may be.
This means that in cases of sexual orientation discrimination, the church or religious institutions will have a difficult time to justify the discrimination. Usually the church will try to do so by demonstrating that there was a pressing purpose for the discrimination that overrides the interest of those being discriminated against. If the discrimination was a central tenet of the religious doctrine of the church or other religious organisation and if the impact of the discrimination was minimal, it might be possible for a church to escape censure. But this will only be successful if the court can be convinced that it is more important to protect the church than it is to protect the victims of discrimination. (The High Court judgment hints that this may in future become more difficult for the church to do so.)
Although the court did not clearly make this argument, I suspect the reason why it was easy for the court to rule that the Dutch Reformed Church had unfairly discriminated against gays and lesbians is because the actions of the church itself made it clear that the church was conflicted about the issue and that it did not hold a particularly strong religiously inspired view that its religious doctrine required it to discriminate against gays and lesbians. As the judgment noted:
The church was split on its interpretation of the Bible pertaining to same-sex marriages and leadership in the Church based on sexual orientation. There are thus two mainstreams in the Church pertaining to this question of same-sex marriage and leadership. Many members of the Church could live with its 2015 decision and many members could not…. This is not a matter where Gaum [the applicant] is the outcast community that differ on doctrine and expect the majority to fall in with their exclusive view on sexual orientation. It can be accepted that the Church honestly and sincerely hold certain religious views, but from the split in the vote it is clear it is not an umbrella view.
The decision of the church in 2016 to revert to its previous position which required all dominees to discriminate against gays and lesbians could therefore hardly be said to be to be a central and well-settled tenet of the doctrines of the Dutch Reformed Church. It was a decision sparked by political pressure, albeit pressure applied by individuals who motivated their views along religious grounds. It is therefore not surprising that the court held that there was no pressing religious purpose to justify the discrimination against gays and lesbians.
The church faced another problem, one that many other religious institutions face who claim that they love gay men and lesbians, but then show their “love” by enforcing discrimination against gays and lesbians. Such institutions tie themselves in knots to try and strike a balance between the homophobic and/or religious beliefs of their congregants, on the one hand, and their need to send a signal that the church is not heartless and cruel, on the other. In the case of the Dutch Reformed Church, this problem is demonstrated by the manner in which it treated aspirant dominees before the 2015 decision. As the High Court noted:
[I]f a member of the Church is permitted to study to become a Minister in that Church, but disallowed to engage in his or her profession only due to the fact that he or she would be in same sex relationship there is an inherent contradiction in the Conduct of the Church.
Moreover, the second part of the judgment must surely be obiter dictum (an opinion expressed in a written judgement, but not essential to the decision and therefore not binding on other courts) because it dealt with the constitutionality of a decision the court had already ruled was not valid and hence did not in fact legally exist.
Which means we do not know yet how courts in future will strike the balance between the need to protect individuals against the harmful beliefs and practices of churches and other religious institutions, on the one hand, and the rights of churches and religious institutions to engage in such harmful practices on the other. What the judgment does suggest, is that courts might slowly be tilting towards the protection of individuals harmed by religious beliefs and practices and may in future be less ready to give religious institutions a free pass.