Constitutional Hill

freedom of religion

The return of fake morality?

Aug 16th, 2010
by Pierre De Vos.
184 comments

Because my parents were members of the Dutch Reformed Church, I had to attend the church service and Sunday school every week. What fun! The dominee (minister), speaking in the ridiculously pretentious accent learnt at the kweekskool (seminary), usually warned in apocalyptic terms against the evils of sex before marriage (or sex with an Engelse meisie or a black woman - after marriage), Satanism, masturbation, homosexuality and the twin evils of communism and majority rule.

Sometimes the dominee also warned us that one had to pay at least one tenth of one’s income to the church to demonstrate one’s love for Jesus our Lord. (Loving Jesus was not too difficult for me, as the pictures in my Children’s Bible of a semi-naked Jesus on the cross, his six pack rippling, his long blonde hair styled in the way that was so popular amongst hairdressers in Benoni and Brakpan in the nineteen seventies, was almost as sexy as the adverts for Jockey underpants in Huisgenoot.) 

The Dutch Reformed Church, whose dominees almost all belonged to the secret and shadowy Afrikaner Broederbond, was all-powerful – the National Party at prayer – and played a pivotal role in legitimising and defending apartheid. It also ensured that a narrow, bigoted, morality was enforced on society as a whole: there was no movies or sport allowed on a Sunday and even at the Hennenman swimming pool (which was only open from 2-5 pm on a Sunday) one was not allowed to dive from the diving board on a Sunday out of respect for the Church and perhaps even for God.

After 1994, Afrikaans Churches pretty much lost their moral authority as more and more white Afrikaners faced up to the fact that the church had supported an evil and immoral system under the guise of high moral principle. In 1998, staying at the Parktonian Hotel in Braamfontein, I was therefore not surprised when I looked out of my hotel window across the street and spotted the face brick Dutch Reformed Church, now all boarded up with a huge “For Sale” sign in the front.

The church and its particular brand of bigoted and racist moralism had become truly bankrupt and was now completely delegitimised. From now on, I thought, we will look towards the Constitution as a guide for ethical living – not towards any church or the teachings of some odd men in Penguin suits.

But in the moral universe of President Jacob Zuma (in which it is perfectly acceptable to take more than a million Rand from a crook, to do favours for that crook and then to submit a fake loan agreement to Parliament to cover up your tracks) and some (but luckily by far not all) of the members of the ANC, churches and a particular brand of narrow minded and bigoted morality is making a comeback. Hey, in this world, it is ok to steal other people’s money and to be corrupt - as long as one prays to God and hates homosexuals and woman equally.

Recently the shadowy and far-rightwing group called the Family Policy Institute (FPI) teamed up with the Film and Publications Board (the predecessor of the censor board who, under the guidance of the Dutch Reformed Church, “protected” apartheid South Africa from the “immorality” of being shown woman’s naked breasts and the “dangers” of the speeches of Nelson Mandela and Oliver Thambo) to hold a seminar warning against the so called dangers of pornography.  

This was not, let’s be kind, an event where scientific or academically plausible research was shared or discussed: it was a progapaganda exercise promoting narrow and very particular religious views.

For some scary entertainment on the laughable and unfounded views of the FPI, one can peruse their website which warns that pornography destroys the human soul (if one can find the soul at all) and morality (as defined by some people who believe that if we only fear a god we cannot see and whose existence we cannot prove we will all live happily ever after in a heaven where we will all love each other, sing Kumbaja while holding hands, before retiring to bed to recite Amore Vittone songs backwards to make us go to sleep). The document also warns that pornography is so strong and evil that it destroys marriages (the heterosexual and non-polygamous kind, of course) and also causes poverty and corruption. (Well I lied about the poverty and corruption, but you get the drift.)

The fact that a state body like the Film and Publication Board, with the assistance and support of the Deputy Minister of Home Affairs, teamed up with a very reactionary, homophobic, anti-abortion, religious group, is truly shocking as it sends a signal that a state institution has chosen sides against the values of openness, respect for difference, freedom of religion and opinion and human dignity ensrined in the Constitution.

It suggests the Department of Home Affairs and the Film and Publication Board have decided to endorse the mad ramblings of a reactionary group who feigns interest in saving our soul while eying our wallets. What do all the many strong and progressive woman and men in the ANC think of this, I wonder?

Another such scary group now gaining in influence amongst members of the new elite in the Eastern Cape is an outfit called the “Godly Governance Network” (lovely name, not such lovely people). In an email advertising its “prayer focus” for the next two months, the Network states:

Repent before the Lord for the sexual immorality and adultery that is filling our Province resulting in unwanted pregnancies (and often abortion), break up of marriages and the rapid spread of HIV/Aids.  Repent on behalf of the government’s policies that have encouraged this…..

Pray for the re-education of this generation on family values according to the Word of God, i.e. a man shall be a husband of one wife (Titus 1:6); sex outside of marriage is sin (Hebrews 13:4); homosexuality is sin (1 Cor 6:9); divorce is not God’s will(Mark 10:6-12); husbands should love their wives (Eph 5:25,28); wives should respect and honour their husbands as head of the home (Eph 5:22-23, 1 Pet 3:1); children should honour and obey their parents ( Ex 20:12; Col 3:22)

The Network is also trying to resist the teaching of evolution in schools and argues that evolution is “Satanic”. These people are crackpots of the first order and they make those omies of the Dutch Reformed Church almost look kind and reasonable. In one of their “Concept Documents”, published in 2008, they write:

Hence most organizations and political parties, from the recently liberated countries find themselves controlled and manipulated to implement the secret agenda of the New Age Movement by adopting constitutional models and systems of government that are aimed at installing the fascist Luciferian World Order and Government. South Africa, the African National Congress and other parities are not immune to this global conspiracy. It is not a surprise to discover that most of its social and economic transformation policies and legislative framework are so alien and foreign to the general citizens of the country. The agenda is to control and manipulate people to adopt Illuminati Policy Agenda through a centralized system of government.

Of course, section 15 of the Constitution guarantees for everyone the right to make a fool of him or herself and proudly to display his or her ignorance and bigotry for all to see. Well, that is not exactly what section 15 states:  it says that everyone has the right to freedom of conscience, religion, thought, belief and opinion - but you get the drift.

While people have a right to hold religious views, no matter how scary or hateful (just as they have the right to believe that religion is a lot of codswallop), it becomes rather troubling when religious groups like those mentioned above attack the very basis of our democracy: the Constitution. Even more troubling is the fact that they seem to have some official sanction from elements in the government. If these people were journalists they would long since have been arrested.  The Constitutional Court has made clear that the right to freedom of religion prohibits the state from enforcing the religious views of some onto society as whole. But that is exactly what the groups mentioned above is agitating for.

Why is it then that in the email I received from the Godly Governance Network, I am told I can contact the Eastern Cape Legislature where the Speaker’s Office will assist me with information about a prayer service conducted in the legislature every Thursday between 4:30 to 6:00 in the Speaker’s Conference Room? Surely, no self-respecting ANC MP would want to be associated with these crackpots? 

Or are we seeing a gradual move back to the pre-democracy era where the government of the day, trying to regain some of the legitimacy it has lost through its immoral and greedy actions, endorses censorship of the press and embraces ever more reactionary religious groups in the hope that ordinary people will be blinded by a misguided moral righteousness and will therefore forget that they are suffering because of the actions of incompetent or corrupt government officials?

How long before Ministers (of the church and of the government) starts warning us again the evils of homosexuality, Satanism and masturbation? How long before a woman’s right to choose to have an abortion is taken away and pictures of naked women and men are banned – along with novels like Lolita, Lady Chatterleys Lover and Chinua Achebe’s When Things Fall Apart? Is this not the way that government’s go when they run out of ideas and have to admit that they are incapable of creating a better life for all?

Zapiro, freedom of speech and the Burka

May 25th, 2010
by Pierre De Vos.
50 comments

It is rather ironic that Zapiro is in hot water for drawing a cartoon bemoaning the fact that some followers of the Prophet Muhammad have no sense of humour. It would be like me being assaulted by ANC Youth League members for saying they are politically intolerant. The vehement response from Zapiro’s critics sort of proves his point.

But irony aside, what would the correct constitutional position be in a case like this where the freedom of expression of the majority clashes with the religious beliefs of the few? I am not talking about one’s personal views and whether, as a matter of respect, one would choose to express or not to express certain views about another person’s religious or other beliefs. Does Zapiro have the right to draw a cartoon of Muhammad or do those followers of the Prophet have the right to demand that Zapiro refrains from drawing such cartoons.

Regular readers of this Blog might have noticed that I am rather libertarian as far as freedom of expression is concerned. Whether it is Julius Malema singing “Kill the Boer” or some fanatical Priest or Imam spewing forth homophobic vitriol, I maintain that more often than not it is better to allow the expression than to ban it. Tyranny thrives in ignorance and silence. If the Pope wants to brand me a pervert who will burn in hell, let him. I don’t believe in hell in any case, so I will just laugh at the Pope and dismiss him as a primitive and superstitious man in a funny dress.

(Of course, one has wondered whether the Pope is making such a fuss about homosexuality because he himself prances around every day in a dress, bedecked in jewels and wearing rather “gay” red Prada shoes, and might be worried that people would think he watches old Liberace videos in his spare time - but let us not go there.)

The Constitutional Court has spoken of the need for our laws reasonably to accommodate the religious and other differences between us. Although the reasonable accommodation of different religious beliefs (and non-beliefs) is not always easy, our Constitution requires all of us to respect the rights of others to hold their own views and to express those views – as long as it does not fundamentally limit our ability to live our lives as we see fit. An atheist is entitled to say that God is dead, just as a reborn Christian is allowed to say that an atheist will burn in hell.

For example, although some people believe that God hates men who love men or women who love women, the state cannot prohibit same-sex couples from getting married because that would infringe on the rights of people based on their sexual orientation. At the same time the state cannot force the religious groups to change their beliefs or to marry same-sex couples in contraventions of their religious beliefs.

Thus the views of religious groups are reasonably accommodated – as they can continue believing in homophobia and can continue practicing it within their Church, Mosque or Synagogue – while the rights of gay men and lesbians are also protected in that the religious beliefs of some are not enforced by the state on all of us to prevent them from living lives of dignity.

In the case of cartoons like the one drawn by Zapiro, one would imagine that the religious beliefs of some could not be used to trump the freedom rights of others and that Zapiro cannot be prohibited from drawing a cartoon that offends some people. To allow that would be to allow the religious views of some to dictate to others what they can and cannot do and say, thus endorsing those religious views and choosing those views above the views and beliefs of others. That would fundamentally infringe not only on the freedom of expression of Zapiro and others but also on their freedom of religion and conscience.

Some atheists, say, may feel deeply offended when they see a woman dressed in a Burka or when they are woken up on a Sunday morning by the church bells, but a law that bans the Burka or bans a church from ringing its bells  would not be reasonably accommodating the views of all religious groups. Similarly, just because some people are offended by depictions of their Prophet does not mean the law can ban others from drawing depictions of the Prophet.

The need to accommodate (without prescribing to others what they can and cannot believe, think or do) becomes obvious when one realises that there are many different religious and other beliefs jostling for space in our democracy and that the state should try not to choose which views and beliefs are true or right – as this would infringe on the religious and other freedoms of others. If the state endorsed the views of one group over another it may lead to tyranny. If the state enforces only the views of some because they claim to be more offended than the rest of us, it would mean that the state has chosen sides in religious disputes – something it should not do.

In any event, as Wikipedia reports, there is no unanimity, even amongst Muslims - about depicting the Prophet:

The Qur’an does not explicitly forbid images of Muhammad, but there are a few hadith (supplemental traditions) which have explicitly prohibited Muslims from creating the visual depictions of figures under any circumstances. Most contemporary Sunni Muslims believe that visual depictions of the prophets generally should be prohibited, and they are particularly averse to visual representations of Muhammad. The key concern is that the use of images can encourage idolatry, where the image becomes more important than what it represents. In Islamic art, some visual depictions only show Muhammad with his face veiled, or symbolically represent him as a flame; other images, notably from Persia of the Ilkhanate, and those made under the Ottomans, show him fully. Other Muslims have taken a more relaxed view. Most Shi’a scholars accept respectful depictions and use illustrations of Muhammad in books and architectural decoration, as have Sunnis at various points in the past.

Just as Christians do not all agree that homosexuality is a sin, Muslims do not all agree that depictions of the Prophet is wrong. This is exactly why the state and our courts should try not to choose sides in these disputes and should leave open a space in which reasonable people could express their views on such matters. Sometimes this is very difficult, of course. Some religious practices or beliefs may be so shocking to the majority or may be viewed as so harmful to some that the state would be justified to intervene.

For arguments sake, if a religious sect believes that child incest is demanded by the teachings of their God, the law may well justifiably limit the rights of that religious sect by enforcing the ban on child incest. This is also why the Constitutional Court endorsed the ban on the possession and use of cannabis – despite the fact that Rastafarians believe the smoking of the Holy Weed will bring them closer to God.

Sometimes – as in the latter example – it will not be easy to draw the line, but personally I would choose more freedom for more people by prohibiting only the absolute minimum number of religious practices while also allowing the widest possible scope for religious contestation trough freedom of expression. Let both the Burka and depictions of Muhammed thrive!

This does not mean, of course, that as South Africans living in a diverse society we should not try to be sensitive about the beliefs of others (whether it is the belief in a God or the belief in no God at all) and should not try to accommodate the practices associated with those beliefs. Although I am not a great fan of the Catholic Church (what with its homophobia and its murderous policy of discouraging its members from wearing condoms in a time of AIDS), I nevertheless keep a respectful silence when I enter a Catholic Church.

And when I speak to a Muslim friend, I will try not to mention my love of bacon and red wine and will, perhaps, politely refrain from bringing up the persecution of gay men and lesbians in many countries where Islam dominates. This I do gladly, not because my friend has a right to demand this of me, but because I think in a diverse society we must try and get along and must respect each other on a personal level.

All I ask is for the same respect to be shown to me and to my own views on religion. Let us all live together without wanting to oppress each other, I say. Maybe in the long run we might all even learn to cultivate a sense of humour.

Is Terreblanche’s church allowed to discriminate?

Apr 15th, 2010
by Pierre De Vos.
41 comments

My friend was incensed: “Why,” he wanted to know, “is the Afrikaanse Protestantse Kerk (APK) allowed to discriminate against black people?” Last Friday, at the funeral of Eugene Terreblanche, much was made of the fact that some black journalists and observers were allowed into the APK. This is because the APK is a whites only church and usually does not allow black people inside the church – at least not during the sermon.

“The Constitution and the Equality Act surely prohibits such discrimination,” my friend continued. “Why is Afriforum not making a noise about this? Why does it not lodge a complaint with the Equality Court against the Church to challenge its policy of racial discrimination? Afriforum claims to be so worried about discrimination so it should do something about this!”

Maybe, I explained, it was because such an action – by Afriforum or anyone else – would have no chance of success. The Equality Court will reject the complaint because the right to freedom of religion will trump the right to equality. In equality matters one must weigh up the purpose of the discrimination against the effect that the discrimination would have on the human dignity of those who are being discriminated against.

Here the purpose of the discrimination is to protect the freedom of religion of the weirdo’s who belong to the APK. They believe that God had separated blacks and whites and should pray separately and the purpose of the discrimination is to give effect to that belief. (I am not sure whether they also believe there is one heaven for whites and one for blacks. How would that work in any case?)

On the other hand, it could be argued that the effect of the discrimination would not be particularly egregious as there are many churches where black and white can pray together and black people would probably not feel very welcome in a church that believes that God was really a big fan of apartheid. Banning blacks from the APK therefore does not present such a fundamental affront to the human dignity of black South Africans that it should trump the freedom of religion of the APK.

“But that does not make sense at all,” retorted my friend. “The Constitutional Court found that Rastafarians were not allowed to smoke dagga, despite the fact that this is a central tenet of their religion. To ban them from smoking dagga discriminates against them in the most fundamental way. Besides, the smoking of dagga is probably far less harmful than the effects of racial discrimination. We live in South Africa, after all, and one can buy dagga on every street corner in the city centre of Cape Town.”

I explained that he was confused. In the case of the APK discrimination the question is whether the APK can discriminate against black people. In the Rastafarian case the question was really whether the state can discriminate against Rastafarians. The Court in effect found that it could (although it decided the case on the basis of freedom of religion, not on the basis of equality) because the purpose of the discrimination was so important that it trumped the freedom of religion of Rastafarians. The ban on dagga keeps us all safe from the evils of drug abuse and thus trumps the right to freedom of religion. At least that is what a majority of the judges of the Constitutional Court believed.

My friend was not impressed. “The Equality Act bans discrimination on the basis of race in the same way that the law bans the use of dagga. Are you saying it is ok for the state to discriminate against a religion when the adherents of that religion are mostly black, but its not ok for the state to discriminate against a religion to enforce racial equality when the religion is exclusively for whites?”

Good question, I had to agree. But the use of dagga is a criminal offense and while racial discrimination is prohibited by the Equality Act, it is not a criminal offense to discriminate against anyone. Maybe that’s the difference between the two religions – the practices of the one religion is a criminal offense while the practices of the other is only illegal and enforced not in the criminal court but by the Equality Court. Or maybe both the state and our Courts just think that the use of dagga is far more dangerous and harmful for our society than the racial discrimination by a private institution who happens to be a church.

“Are you kidding?” my friend wanted to know, his voice rising a notch as it always does when he gets excited. “More people are addicted to alcohol than to dagga and far more people crash cars and kill people in accidents when they are drunk than when they are high, so dagga cannot be that dangerous. Given our apartheid past and given what I saw on TV of the Terreblanche funeral, racism and discrimination is far more of a problem in our society than the use of dagga.”

Well, I explained, maybe this also has something to do with the separation of powers doctrine. If the state explicitly banned religious groups from discriminating against anyone then maybe the courts will agree that such a ban was constitutional. But then I realized I was talking rubbish. The state will never force the catholic church to open up the priesthood to women. Neither would it ever pass a law that would force churches, mosques or synagogues to abandoned their homophobia and to marry same-sex couples.

“So,” said my friend gleefully, “what you are saying is that the state is too scared of the established religions and of people in the APK to ban their religious practices, but because the Rasta’s are such a small and powerless group the state has no problem with banning one of the central practices of their religion!”

Don’t ask me, I told my friend. Ask the Constitutional Court and the members of Parliament why they do not ban the APK from discriminating against black people or why they do not make an exception to allow Rastafarians to use dagga.

My friend laughed. “I wonder what the APK position is on men sleeping with young black men? They are probably not too keen on that.”

Luckily, I am not planning to visit my local APK anytime soon to find out, I told my friend.

Do we have freedom of concience and religion at public schools?

Sep 22nd, 2009
by Pierre De Vos.
39 comments

Discussing freedom of religion and conscience protected by section 15 of the Constitution a few years ago, a Muslim student told me her Grade 1 daughter was forced to learn the song: “Fishing for Jesus.” When she complained about this to the teacher, the enterprising teacher made a plan. A few days later her daughter came home singing the same song, but with a second verse added: “Fishing for Allah!”

This story came back to me when I read in the Afrikaans media that Prof George Claassen of Stellenbosch University has launched a campaign to try and prevent public schools from using teaching time to conduct religious instruction at schools. Claassen is also upset that some schools describe themselves as having a “Christian character” and as institutions where “Christian values” (whatever that may mean) are taught. He is also upset that some schools organise something called a “Jesus week” during which children are encouraged to pin yellow ribbons to their uniforms to show that they are Christians.

Some constitutional law experts quoted in the article rubbished Claassen’s campaign, stating – correctly – that religious ovservance at public schools are not prohibited by our Constitution. But this is a grey area and it is far from clear where exactly our Constitution draws the line.

Many moons ago when I was still at school, our education was avowedly “Christian Nationalist” in character. This meant we were taught that Jesus loves apartheid, the National Party, and “our” boys on the border, that He had died for our sins on the cross so that we could live happily ever after in white South Africa and beat the technical school at rugby, and that evil philanthropists like Lord Phillip who believed black and white were equal in the eyes of the Lord would burn in hell for their sins.

My take of freedom of religion and conscience might therefore be slightly jaundiced.

The starting point must, of course, be section 15(2) of the Constitution which states that ”religious observances may be conducted at state or state-aided institutions, provided that those observances follow rules made by the appropriate public authorities; they are conducted on an equitable basis; and attendance at them is free and voluntary”. This must be read with section 7 of the South African Schools Act which states that:

Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.

But what does this actually mean? Our Constitutional Court’s jurisprudence on freedom of religion and conscience has been far from satisfactory, so the answer to this question is not as clear as it could have been.

The Court seems to have some difficulty with the interpretation and application of section 15 and then often reverts to the limitation clause to “solve” the problem. In one case – Christian Education - Justice Sachs even declined to make a finding on whether the ban on corporal punishment at Christian schools infringed the right to freedom of religion (spare the rod and spoil the child, and all that). He merely assumed that it did infringe on the right before deciding that even if it did, the ban would still be justifiable in terms of the limitation clause.

In the Lawrence case, Justice Chaskalson – in what was effectively a minority judgment – emphasised that the right to freedom of religion meant that school prayers had to be carried out on an equitable basis and had to be voluntary and then continued:

I doubt whether this means that a school must make provision for prayers for as many denominations as there may be within the pupil body; rather it seems to me to require education authorities to allow schools to offer the prayers that may be most appropriate for a particular school, to have that decision taken in an equitable manner applicable to all schools, and to oblige them to do so in a way which does not give rise to indirect coercion of the non-believers.

The big problem is, of course, what would constitute coercion. It is clear that coercion can be both direct and indirect in nature. Direct coercion would occur where a pupil is forced to take part in religious activities or instruction, forced to sing “Fishing for Jesus”, or forced to wear a yellow ribbbon for Jesus. 

Indirect coercion is more subtle. The examples used by Prof Claassen might amount to such indirect coercion. Justice O’Reagan pointed out in the same Lawrence case (in a majority judgment), that where an institution endorses one religion over another or religion over non-religion, the effect would be coercive in nature.

Where the institution places its prestige and authority behind one religion or behind religion in general, it will send a signal that individuals who do not adhere to that religion or are not religious at all are somehow less worthy of respect and dignity. It will then place pressure on such individuals to conform and not to opt out of religious observance or instructions for fear of being ostracised or vilified. Religious observance will then become voluntary in name only.

In such circumstances it will be difficult for individuals – especially school pupils who experience peer pressure acutely – to distance themselves from the widely endorsed religious practices of a school and they will indirectly be coerced into taking part in religious activities with which they do not agree. While the religious views of the majority of pupils could be taken into account by a school’s governing body when formulating a policy on religious observance for its school, and while a school could therefore facilitate voluntary prayers associated with that majority religion, any policy will have to be formulated in a way that would prevent indirect coercion.

A policy that explicitly endorsed one religion over another or religion over non-religion will – in my opinion – not be in accordance with the Constitution because it would signal that those with different beliefs are not “normal” or are considered to have a lesser status or dignity by the powers that be.

I would say a school breaches the provisions of section 15 if it states that it has a “Christian character” and teaches “Christian values” or where it endorses a “Jesus week” but fails to endorse other religious activities of minority religious groups or non-believers. Such actions would make it very difficult for non-believers or believers of non-majority faiths from opting out of the religious activities at schools and the non-believers or believers of other faiths will be indirectly coerced into a specific Christian religious observance – something prohibited by the Constitution.

One way to get around this would be for a school to encourage and facilitate respect for religious differences by refusing to endorse one particular religious view and by encouraging pupils to express their beliefs openly – no matter what they may be. Such a school would then be allowed to have a “religious week”, say, where pupils could wear yellow ribbons if they were Christians, orange ribbons if they were Muslim and purple ribons if they were athiests.

A school could also invite different speakers who would then inform all pupils about various religions and athiesm to send the signal that while the majority of pupils in a school adhere to Christianity, say, other religions and athiesm are just as valid and pupils who adhere to other beliefs are just as valued and respected as those who believe in fishing for Jesus.

Just a jump to the right?

Sep 14th, 2009
by Pierre De Vos.
75 comments

What kind of democracy do we want in South Africa? Do we want a Westminster style winner-takes-all democracy with Parliamentary supremacy in which the majority of the moment can do as it pleases – regardless of the consequences to vulnerable and marginalised sections of society? Or do we want a constitutional democracy in which the majority of the moment is constrained by a set of normative values and human rights safeguards set out in a Constitution in order to bestow equal citizenship on all – regardless our differences?

I am asking because the Mail & Guardian reported on Friday that the National Interfaith Leadership Council (NILC), formed by Rhema church leader Ray McCauley and closely associated with President Jacob Zuma, wants to revisit laws legalising abortion and same-sex marriages.

The NILC last week also attacked FUL for launching a legal challenge against the JSC decision to sweep the Hlophe scandal under the table.  Nthabiseng Khunou, an ANC MP and member of the NILC secretariat, told the Mail & Guardian that the council would “play a role” in revisiting legislation legalising abortion and gay marriage. At least four of the 20 members of the NILC are reportedly ANC members of Parliament and the M&G claimed that the NILC uses the ANC parliamentary caucus’s communication facilities to communicate with the media, as two NILC press statements were sent from the ANC’s offices in Parliament.

When the same-sex marriage legislation was discussed in the ANC caucus before it was passed by Parliament, many ANC MP’s expressed vehement disapproval of the legislation, some doing so in the most ugly homophobic terms. During the public hearings in Parliament on the legislation some ANC MP’s expressed concern that the legislation would lead to the extension of adoption rights to gay couples, blissfully unaware that the Constitutional Court had already extended that right to same-sex couples several years ago.

One hopes that the Mail & Guardian report is a little alarmist and that the majority of ANC MP’s and members of its NEC are neither right-wing, nor homophobic. Nevertheless, it is worrying that there seems to be a growing lobby in the ANC who are right-wing and hate gays and lesbians. After the Polokwane revolution, many commentators argued that the ANC would now move to the left, but that prediction seemed to have been wildly optimistic. Are we seeing a jump to the right instead?

Of course it will not be easy to take away the right of same-sex couples to get married. The Constitution will have to be changed first. And many good people inside the ANC are dead-set against changing the Constitution in order to reintroduce discrimination against gay men and lesbians, condemning us to second-class citizenship.

Some would argue that the Constitution should be changed to allow for the reintroduction of discrimination against gay men and lesbians and the subjugation of woman living in rural areas because that is what the majority of South Africans want. Respect for the dignity of women and gay men and lesbians, so the argument goes, are not in accordance with “African values and traditions”, “Christian or other religious teaching”, “Afrikaner culture”, “public morality” etc. 

This view cannot be squared with the notion of a constitutional democracy. In such a democracy – established by the 1996 Constitution - the views of the majority (no matter how sincerely held) cannot always be used to justify discrimination against vulnerable and marginalised sections of society. Justice Sandile Ngcobo said it well in the Hoffmann v SAA judgment dealing with HIV discrimination:

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly.

I obviously subscribe to the notion of constitutional democracy. That is why I believe in religious freedom and the right of religious organisations to discriminate against gay men and lesbians. If a religious group refuses to marry a same-sex couple or prohibits its clergy or ordinary members from loving members of their own sex, I might point out that they are animated by prejudice, bigotry and hatred, but I would not advocate for a closure of the church or for an incarceration of its leadership. Live and let life, I say.

The folks of NILC are a bit less tolerant, it seems, and want the law to reflect their own prejudices and to endorse their own bigotry. This is rather short-sighted as it assumes that one’s own view will always be the majority view. But societal views change and none of us can say with certainty that we would not find ourselves as part of a vulnerable and marginalised minority at some point during our lives. We may discover we are HIV positive or we may suddenly belong to the “wrong” faction in the ANC. It is then that a constitutional democracy will protect us from mob rule.

Pity so many religious leaders cannot understand that it is short-sighted and dehumanising to want to enforce your own views on the society as a whole. Why are they so insecure about their teachings that they want the state to police the teachings of their church? Are they somehow worried that ordinary people would reject the fairy tales they tell every Sunday? Don’t they have any FAITH?

Et tu Trevor

Mar 27th, 2009
by Pierre De Vos.
55 comments

Trevor Manual, who just loves to defend the corrupt arms deal, is at it again. Last night Manuel told a packed gathering at the University of Cape Town that saying anything against the Dalai Lama was in “many quarters equivalent to trying to shoot Bambi”, but the question was, who is he? According to Business Day:

“Is he just the spiritual leader of the Buddhists in Tibet or is he the one who on March 28 1959 established the government of Tibet in exile in the same way Taiwan was established to counter the legality of a single China?” Manuel asked. … “The reason why the Dalai Lama wants to be here is to make a big global political statement about the secession of Tibet from China. He wants to do it on the free soil of SA,” Manuel said.

This is terrible! I am shocked! I am chastised! If only I knew that the Dalai Lama opposed the annexation of his country by the Chinese,  and the vicious oppression of Tibetans and their language and religion. If only I knew the Dalai Lama had the bloody cheek to  launch a struggle to have his country restored to its people and that he – gasp! – established a government in exile after the annexation of Tibet by China, I would never have supported his visit to South Africa and would never have criticised the government for refusing him a visa.

If only I knew that the Dalai Lama was going to abuse the freedom of speech we have enshrined in our constitution to criticise the illegal annexation of his country by those freedom loving, human rights supporting, Chinese, I would never have mouthed off about the government decision.

After all, who wants to support a man who resists the annexation of his country? If we went down that road, we would have had to support Churchill in the second world war and this would have made Hitler very angry, for God sake! Surely anyone with a moral compass can now see how dangerous it would have been to allow that so called “peaceful” terrorist on our shores. He is for freedom and against tyranny and if we allowed him here it might actually give the natives ideas and we cannot have that, can we?

Really, South Africans just do not understand how precious our freedom of expression is, so they want to abuse it and want to allow a man of the cloth to talk about counter-revolutionary ideas like freedom and self-determination. But as the Minister has now pointed out, freedom must be jealously guarded so we should not share it with anyone. It’s far too dangerous! What next? Before we know it people will be agitating for the independence of Rhodesia and South West Africa (Oops, too late to stop that, I suppose.)

I am so proud of my Minister of Finance. He really knows his right from his wrong. Besides what is wrong with shooting Bambi? I never liked those big innocent eyes and always thought Bambi was a terrorist in Disney Drag. I am sure Trevor, on reflection, will agree that shooting one’s enemies – as the Chinese often do – is the way to go. Let’s start with Zille and Lekota. That will teach them a lesson and will show how freedom loving we really are. You go girl!

On freedom of religion and the marginalisation of Muslims (and atheists)

Dec 2nd, 2008
by Pierre De Vos.
46 comments

I was struck again today by how difficult it is for all South Africans to come to grips with the implications of our world class Constitution. Individuals in institutions tend to continue  to act in ways that reflect their own view of the world, without taking cognizance of the need to change assumptions and transform practices  in line with the requirements of our Bill of Rights.

We tend to see the world from our own vantage point and if we are members of the dominant group we often fail to notice the often hidden assumptions on which we choose to base our decisions and practices. The Constitution is supposed to help change this, but change comes slowly and will often be resisted on grounds that might seem reasonable but might hide a kind of majoritarian world view that inevitably leads to the marginalisation of minorities.

This is especially evident when the right to freedom of religion and conscience is at stake. So, I was not surprised when I discovered that the supplementary exam for one of my courses was scheduled for a Friday afternoon between twelve thirty to two thirty. This meant that Muslim students who wanted to attend Friday Prayers could not write the exam and had to apply for a special examination to be written in the new year.

When questioning this, I was provided with a seemingly reasonable explanation, namely that it would not have been possible to reschedule exams for this time slot because there simply were not enough time slots in the supplementary examination week to accommodate all the courses to be written on Friday afternoon.

The Constitutional Court has dealt with this question in the so called nose stud case where it provided a nuanced understanding of the role of culture and religion in our society and the ways in which minority cultural and religious groups are marginalised and discriminated against.

In that case Chief Justice Langa pointed out that a Code of Conduct like the one adopted by Durban Girls High School was not a neutral document. The norms of such a code actually enforced mainstream and historically privileged practices and excluded marginalised practices. What was required in such cases was for a school or other institution to make a reasonable accommodation of all the different cultural and religious practices of its members. This required more than mere tolerance of what is perceived as weird or alien beliefs and practices and required a celebration of the diversity of cultures and religions in South Africa.

The case should be compulsory reading for all managers in South Africa as it has profound consequences for our debate about religious diversity. It placed a heavy burden on any institution to accommodate those who do not form part of the majority and whose beliefs and practices are not embedded in the institutional culture of that institution through its codes, rules and practices.

So often those who form part of the majority do not notice that the rules and codes they have adopted reflects their own cultural beliefs and practices – often seeing the rules and codes as natural and normal expressions of what is required for the institution. This judgment instructs institutions to move away from culturally specific rules and codes and requires them to engage with diversity and difference.

If we had not lived in Zilleville, but in Islamabad, a University would have planned ahead to ensure that no exams would have to be written during the Friday Prayer. But because the vast majority of South Africans (and the University management) are Christian, this was never considered. It would have been easy to extend the examination period with one session to accommodate everyone, yet this was not done – not out of malice but because of a lack of knowledge and appreciation of minority religious practices.

This thoughtlessness sends a signal to the minority religious group that their religion is not equally respected in our society. It fails to celebrate the diversity of our society in the way advocated by the Constitutional Court.

Atheists or people who are sceptical about the existence of any higher being also face this problem as it is often assumed that one is religious and belongs to a specific religious community. This is why I was disappointed by the remarks made by Mr Jacob Zuma (ha, you thought I would get through an entire post without mentioning the Dear Leader!) that “we need to teach our people to fear God”.

No Mr Zuma, in line with the Constitution we need to teach our people to respect each other and each others beliefs – whether we believe in Allah, in Jesus Christ or merely believe that it is a good thing to have a glass of wine every day. Respect for difference is the key. But if one has a narrow world view and is not aware of one’s own hidden alienating assumptions about how the world works or ought to work, one cannot respect the full diversity of beliefs in South Africa.

On freedom of religion and the gay music teacher

Sep 3rd, 2008
by Pierre De Vos.
23 comments

Where does freedom of religion end and respect for the constitutional values of equality and dignity begin? I ask because I see some religious groups have expressed disquiet at the recent ruling of the Pretoria High Court that the NG Kerk in Moreleta Park unfairly discriminated against a gay music teacher when it fired him for being in a long term committed relationship with another man.

Judge Dion Basson last Thursday ordered the congregation to pay the teacher damages of R87 000 and to apologise unconditionally for its conduct. He said Strydom’s contract was terminated on the basis that he was involved in a homosexual relationship. The church had failed to prove that Strydom’s job entailed religious instruction, or that the discrimination against him had been fair or justified, the judge found.

According to the Mail & Guardian some religious groups are up in arms, arguing that their freedom of religions is being trampled upon.

Apostolic Faith Mission church president Dr Isak Burger said the ruling is a “serious threat” to religious freedom in South Africa. It subjects the biblically based beliefs and values of the majority of Christians to “pure humanism and an extremely secular and liberal Constitution. It places the Constitution above the Bible and man above God.”

It seems to me this view completely misreads the nature of freedom of religion in a constitutional state, advocating for the right of religious groups to trump the rights of anyone else in all circumstances. It is not based on the notion of religious freedom at all, but on the endorsement of religious tyranny.

In the same-sex marriage judgment Justice Albie Sachs dealt extensively with this issue. In that case some religious groups argued that the recognition of same-sex marriage would infringe on their freedom of religion because marriage is seen by many religious groups as being uniquely between one man and one woman. By extending marriage rights to same-sex couples the state would be trampling on this sacred institution and would thus be forcing religious groups to abandon their deeply and sincerely held belief s about the nature of marriage.

Sachs countered by stating that in a constitutional state there was a need for an accommodation between the sacred and the secular. A balance had to be struck between the need to respect religious beliefs and practices on the one hand, and the protection of the dignity of all on the other. If a state forced a religious institution to adopt certain views in the practicing of their religion, it would trample on their freedom of religion. But this did not mean that the views of some religious groups could justify unfair discrimination against gay men and lesbians in the public arena.

The same principle applies in this case. It would therefore infringe on the freedom of a religion on churches, mosques or synagogues to force them to employ a gay dominee, imam, rabbi  or priest or to force the Catholic Church to ordain woman priests. The same would be true for  forcing them to employ someone giving religious instruction at that institution.

But this does not mean that such groups can be exempted from the general employment rules or the provisions of the Equality Act or the Constitution altogether.

Where a religious group employs an individual in a non-religious capacity, for example, the Constitution demands that they do so without discriminating against anyone. A church that employs a secretary or a gardener cannot prohibit a gay man or a black woman from doing these jobs because that church happens to espouse homophobic or racist views.

This is because these jobs are not directly linked to the religious nature of the institution. A person employed as a typist, a gardener (or a music teacher for that matter) does not give religious instruction and forcing a church to employ such a person in no way forces the church to espouse views or practices that its religion frowns upon or even abhor. The religious freedom of the church is therefore not affected while the rights of all citizens remain protected.

This seems like a sensible compromise also adopted by the Pretoria High Court. To have held otherwise would have in effect exempted religious institutions from the basic rules set out in the Constitution that is aimed at protecting the equality and dignity of all people living in South Africa.  This would have created a situation in which religious institutions are in effect above the law and would have allowed them to engage in the most shocking and inhuman kinds of discrimination against anyone with which they have any dealings.

So this judgment manages to balance the interest of the state against the interest of religious groups in a sensible and pragmatic fashion, refusing to sanction religious tyranny. After all, not all religious groups are homophobic, sexist or racist, while many South Africans are not religious at all. In a country where we are building a culture of respect for diversity and difference churches can therefore not get a free pass. All they can expect is that they will not be forced to adopt beliefs they do not like or that their Bible or Koran tells them are sinful.

This is, after all, not Iran or Germany. We respect different belief systems and do not give preference to the bigoted and homophobic views held by some.

And Zapiro on freedom of religion….

Nov 21st, 2007
by Pierre De Vos.
4 comments

Freedom of religion

On freedom of religion

Nov 21st, 2007
by Pierre De Vos.
2 comments

My somewhat tongue in cheek post about the firing of the Rapport columnist, Deon Maas, earlier this week and a subsequent post on the Thought Leader page have elicited strong comment from several quarters berating me for my intollerance and lack of respect for the freedom of religion of others. Others have said that the successful campaign to get Maas fired from Rapport was merely an expression of freedom of expression and religion and that I am just a hateful person for calling such people bigots.

As a guy called Attie du Plessis memorably summed it up on Thought Leader:

We live in the real world where some people have chosen to keep their faith. Just because you are to[o] small minded to understand that choice is the basic foundation of our society, does not give you the right to critisize.

It seems to me this criticism emanating from people who support the axing of Deon Maas, is based on a fundamental misunderstanding of the nature of freedom of religion (and freedom of speech) in a democracy.

What they are saying is that they see their religious beliefs as so sacred and untouchable that they have the right to silence anyone who in any way challenges those beliefs. Rapport, they seem to say, is our newspaper, and if anyone is going to be allowed to write anything in that paper that does not square with what we believe already, we have a right to get rid of that person. This is the freedom we have to use our commercial muscle to shut up things or ideas we do not wish to be confronted with or know or think about.

They talk the language of “choice” and “freedom” but their actions reflect a profound distrust of choice because they wish to prevent the exercise of any meaningful choice and thus the exercise of any meaningful freedom.

In my opinion, at the heart of the South African Bill of Rights is the notion of dignity in freedom, the idea that one can only truly live a life in which one’s dignity is respected if one has the choices to decide who one is, what one believes in and how one wants to live. This requires food to eat and a roof over your head, yes, but also the education and the exposure to different ideas that would make one’s life choices meaningful.

Of course, one must be free to choose one’s religious beliefs or whether one wants to believe in anything at all (I like the Australian bumper sticker that says: “Everyone has to believe in something – I believe I will have another beer), but that belief must be a genuine one based not on habit or tradition, but on an active choice made after some exposure to opinions that are not shared by the majority of people in one’s community or the country.

If I was born into a Christian or Muslim family and I was never exposed to ideas about other religions or belief systems, then my choice to remain a Christian or a Muslim would not really be a religious choice respecting my dignity at all – it would merely be a choice not to upset my parents or not to face up to other powerful societal forces, a choice to conform and to do what is expected of me. That is not religious belief but religion as culture. But I would make an even stronger and somewhat controversial claim: I believe that in the absence of such a choice I would not be living a life of dignity in freedom, but a life of un-freedom and (internalised) oppression.

I always think it strange that many people who believe that their god is the one true god – and believe this passionately and with much conviction – do not seem to revel in the opportunity to test their beliefs against the beliefs or non-beliefs of others. Such people seem to express a severe insecurity about their beliefs – as if any mention of other beliefs or non-believing will threaten the very core of their existence.

The people who had the columnist at Raport fired for presenting a view that differed from their own, therefore seem to me to be rather defensive about their beliefs and do not at all seem sure that these beliefs would stand up to scrutiny. Either that, or they are just plain intolerant, narrow-minded and hateful and think: we are the majority and we do not like this so we will stop this person from having a say in our newspaper.

The problem is of course that many adherents to almost every religion believes that theirs is the one and true religion and that their god is extra special and thus demands obedience and respect from all – even non-believers. The very nature of strong religious beliefs therefore often seems to make religious tolerance difficult if not impossible. If I believe only my god can save the world from eternal damnation and if I believe only my god is the Truth, why would I want to listen to what others have to say: I would be certain and would really have a duty not to be led astray by sex or drugs or rock and roll  or philosophy.

This kind of religious certainty has, of course, caused much conflict and death in the world and will continue to do so. Like all absolute certainty, it seems deeply illiberal (to use a favourite Ronald Suresh Roberts phrase) and perpetuates hatred and fear in the world. It is that certainty that is at its heart intolerant and, I have to say, bigoted, because it condemns all other views and all others who hold such views (“turn on burn” says the Christians for instance) and demands uncritical obedience.

Our Constitution tries to steer a middle course by saying all religions and all religious beliefs must be respected and protected along with other beliefs and opinions. The problem is that many religious groups find it shocking to have their religion relegated to just one more belief system that can be discussed and debated and criticised alongside others. How dare you compare Satanism with the Holy NG Kerk?! That shock stems from an unfortunate intolerance and hatred of Others that comes with the absolute certainty of one’s own beliefs.

In the end the Constitutional Court’s demand for respect for diversity and respect for the dignity in freedom of every person is not easily squared with the kind of religious intolerance and hatred of Others that so many believers still cling to. I suspect no matter what the Constitutional Court or anyone else say, this kind of certainty is not to be dislodged, so we will continue to live in a society in which intolerance of other views and hatred of “the Other” will thrive.

Finally, I would contend that by putting forward this argument I am not displaying intolerance, as alleged by my detractors, because I am not saying believers should not be allowed to write articles in Rapport where they can denounce my views or even me. I am saying, let us express our views frankly and openly and let us talk about it and let us see who wins the argument. If that is intolerant, then thank god for intolerance.

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