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?
Firstly, my gut feel is that the NILC will not succeed in this quest. I feel that they are too compromised in uncritically supporting incumbent office-bearers, and that the politicians will lead them on to obtain the “blessing” of some church leaders, but then find a way out of doing what they want.
However, Prof, I feel that you have strayed a little from objectivity and intellectual rigour here.
You describe the position that opposes the legalisation of same-sex marriage as being “right-wing” and “homophobic”, as though this is a given. Perhaps you could define these terms.
You also worry about those who “hate gays and lesbians”. You then descibe those in the ANC who “are dead-set against” changing the Constitution as “good people”.
You then refer to the, “reintroduction of discrimination”, as though ANY discrimination is wrong, whereas the Constitution outlaws “unfair discrimination”, and also allows for a limitation of rights where this is “reasonable and justifiable”.
The equality clause in the Constitution has been taken in practice to mean that all lifestyles referred to are morally equivalent, and that there is no distinction between inherent attributes that are protected, and those that are a subject of choice (not that I minimise “choice”, as the freedom of conscience must rank very high).
But, while no UNFAIR discrimination must be allowed with, for instance, marital status (where many single mothers face a terrible struggle in life), it is not totally unreasonable for society to “prefer” marriage as the best context for raising children.
I would like to put forward the idea that the same-sex marriage decision was logically and legally flawed because it required a redefinition of the term “marriage”, which has been inexistence for the whole of human history. I contend that the ConCourt does not have the standing to make such an arbitrary ruling.
Sure, it is difficult to define what is fair discrimination and what is unfair in this context, and it is not simple to accommodate the valid rights of gays and lesbians without use of the word, “marriage”, but a small minority has changed the meaning for everyone of something that has been sacrosanct for millennia.
I also charge you to justify how you can call me “right-wing” or “homophobic” because I have a carefully thought-through position that happens to be based on a worldview that differs from yours (I do acknowledge, though, that many who share my views are probably judgemental and possibly homophobic).
The seperation between church and state should be respected, and should perhaps even be constitutionally enshrined. By allowing the NILC or any religious faction to influence the state to the extent that laws will be changed because they (the church) is of the opinion that it is “immoral” is a slippery slope, laws should be made based on reason, and even though laws may contain moral weight and content, if that’s all they have then there is a problem.
But who is the ‘we’ that want Constitutional democracy? and who are the ‘others’ who dont, why are we right and they are wrong? I am aware what your argument and mine would be. I am also aware that at the time the Constitution was drafted ‘we’ decided we wanted a constitutional dispensation, I cannot possibly list the reasons here for why we wanted it, but mostly I think, it was because ‘we’ wanted to make sure we were not subjected to the same kind of discrimination that ‘we’ had metered out for oh so long. So we got what we wanted.
The perception among people may very well be that the ‘we’ that got what we want and had an unfair advantage in negotiating it, and the majority of South Africans now have to live with it, and it isnt necessarily what they want.
The point being, we who want it are assuming the role of big brother, again, because we know better. Here I sit looking at bigotry in the mirror.
Pierre,
Tell me, while we are in the spitit of equality, do you refer to all religions as fairy tales, or only those who differ from your views?
Mike, marriage in its modern form, endorsed by the state and often religious organisations is a pretty recent phenomena, so you are wrong to say marriage has been in existence since the start of human history. Extending marraige rights to same sex couples in no way prohibits or interferes with the right of different sex couples to get married. So why make the distinction? Because of tradition? But traditions can and do change? Why keep this “tradition”? The only possible answer is that one believes that by extending the right to marry to same sex couples one is actually watering down, devalueing or defiling this institution. Seems to me that view is only tenable if one has a certain view of homosexuality, a view I choose to call homophobia.
DJL, while I will defend the right of anyone to believe whatever they want, I myself do not believe the stories told by organised religions of any kind. I kinda suspect we will all die and be eaten by the worms. End of story.
@ Mike Atkins,
In the first instance, I am not an attorney, so please forgive me if I am way off the mark on the following comments.
The Constitution does make reference to unfair discrimination, and further goes on to state that this would be discrimination on the basis of sexual orientation. Where the Civil Union Act is now in existence, would the removal or revocation of that Act then not constitute unfair discrimination? Furthermore, how would S 36 be justifiable in the revocation of the rights of same-sex couples to enter into a civil union partnership when this would not necessarily be a law of general application, but only affecting a certain sector of the population?
Finally, to my understanding, the term “marriage” has not been redefined as partnerships under the new act are termed civil union partnerships and not marriages. Again, this is what I understand and I could be incorrect in this.
an interesting comment on the subject:
http://www.thoughtleader.co.za/joncayzer/2009/09/14/mccauley-%e2%80%98zumas-camerlengo%e2%80%99-is-a-threat-to-liberal-democracy/
First, I find it interesting that South Africa and South Africans have obviously not learned much, if anything, from its own recent history of apartheid, discrimination and racism. I find it incredulous that the very people who were discriminated against in the past, now discriminate against others, if not their very own people (!).
Second, the pendant to this argument is, historically, the church is also known to have used and abused its position as an instrument of oppression too. The very fact that it considers itself as the uppermost instance of morality is proof of this, much like in the past when it used the bible to discriminate against blacks and other minorities (and to justify such discrimination too!). It’s a real pity that South Africa has reached the aforesaid state and position in society where the church is considered as the uppermost “guardian of morality” precisely because it simply isn’t and it shouldn’t be regarded as the only moral institution. I think it is high time the church gets off its high horse and start doing what it has failed to do over the past centuries. Incidentally, and on the issue of the church being the moral apostle against homosexuality – see also the numerous examples of notable preachers who have been caught in homosexual activities whilst vociferously preaching against it (e.g. Ted Haggard in 2006, Lonnie Latham in 2006, Paul Barnes in 2006, John Paulk in 2000 and other moral apostles who have been caught in the web of the very vices they have preached against e.g. Douglas Goodman guilty of sexual assault, Richard Roberts for misappropriation of monies, Coy Privette being guilty on six counts of aiding and abetting prostitution – and the list goes on. What am I saying: the church and its leaders should stop playing God and stop trying to impose its sense of morality onto society? Ultimately, South Africa is not a religious state.
Third, how can South Africa claim to having the “world’s most progressive constitution” when it tramples on the rights of innocent people – is this a kind of “African democracy” or is it a flagrant slap in the face of the tenets of any civilised and modern democracy?
PS: Pierre, I think your sentence ought to read (3rd last par): “That is why I believe in religious freedom and the right of religious organisations NOT to discriminate against gay men and lesbians”.
We are taught from young to refrain from discussing sex, politics and religion in civilised society. Obviously the Prof ignored that lesson!!
I agree with the theme of this post and I agree that while we should not completely disassociate politics from morality, we should be careful as to whose moral code of conduct we conform our political model.
I am extremely anti-religion. I believe that religion is a man-made structure geared at the subjugation of people for the exploitation of those within the church hierarchy. This is my personal opinion and I certainly would not expect others to subscribe to it.
Were we to consider the viewpoints of the NILF and implement these suggestions, then what would prevent us from taking on elements of Sharia (spelling?) law and chopping off the hands of thieves or stoning women for adultery? These too are religious convictions of members of our community. We could revert to preventing businesses from operating on the Sabbath. The list is endless.
While each of us is entitled to seek the refuge of our faith, our faith should not be imposed on those around us.
There were two miracles that the Democratic countries of the world view with respect to South Africa. One, that the transition unfolded without a bloody civil war, and two… the Constitution, which is highly respected internationally as one of the best in the world, if not The Best.
Your question Prof: Are we turning to the right? I’m surprised you ask, though I suppose it’s to prompt discussion.
A proclaijmed Democracy which permits the union of church and state is not a Democracy, at best a pseudo Democracy.
For those who don’t understand the importance of law and order under the Constitution, rigorously upheld by the judiciary with its various arms, I can say quite confidently, if we lose it, we’re all lost.
To Samantha,
On the issue of the use of the term civil union as opposed to marriage: In many European countries (e.g. Spain, Holland, Denmark, Sweden, Germany to a large extent etc.) you’d notice they generally also use the term “civil union”. However, the question is not using a bland term but it is looking at the nature and content of this term called “civil union”. In these countries, the term “civil union” is defined to go much further than it merely constituting a union or partnership between two people from the same sex. The contents of this union, just like with any heterosexual marriage comprise all and the same rights and obligations of any marriage, it also includes the right to have and to adopt children, the right to claim pension from the other partner, tax equality, divorce etc. So, I think one ought to look past tags and look at the contents thereof.
Wow! What an important development by Zuma et al. It tells us exactly where we are as a Nation. We are exactly in the times of Martin Luther, John Calvin, etc. during the Rennaisance in Europe when people realised that the fact that the state and the Roam Catholic Church were interwoven was to everyone’s disadvantage and started revolting and proposing opposing views!
I have always thought what Zuma said during his rape trial was not merely to get off the hook but he was stating his deeply held prejudices. I am disappointed that he has not found a way to fight off his demons instead of ducking and diving and being a populist! Had he realised that he held prejudicial views, he would not be Louis (IVX) right now but he would be educating the church leaders that they have a right to teach religious teachings and let their children subscribe thereto but they do not have a right to want the entire country to subscribe thereto. After the review of the gay and lesbian marriage rights and abortion, what else?
There are many aspects of our lives which do not conform to any religion, does this mean all those aspects will have to be tailored to suit religious beliefs? There are many religions, which one will be the Moral Guardian? Of course our country is not the most morally high in the world but there manner that Zuma is going about rectifying this elucidates his deeply held prejudices or reveals just how much of a populist he really is. He is continuing being everyone’s champion; he clearly lacks any backbone whatsoever!
Well there certainly seems to be a basis for the view that the folks over at the NILC (these so-called men of God as it were) are merely intolerant, arrogant and insecure people who cannot accept that people may want to decide for themselves. They seem pretty ordinary to me and I would just as soon watch Boston Legal than listen to one of them pretend that he can see beyond his own prejudice and immodesty for long enough to guess at spirituality.
Much like you Samantha, I tend quite heavily against religion. And the people at NILC certainly confirm my disinclination. In a nutshell, I would like to find some sort of path at some point or other. But I think that the ‘teachers’ at NILC may want to think about helping themselves before purporting to save others.
Didn’t know Judge Kriegler is a member of NILC as well?
Prof,
Just need to point to a slight error in your blog. When analysts claimed the ANC is jumping to the left, they meant economically.
There is a big difference between being economically right wing and socially right wing.
The ANC is economically to the centre left, but socially to the right.
I know the difference is not always clear, as even Margaret Thatcher claimed to be socially conservative but economically liberal.
Now, I find Pastor Ray McCauly’s view extremely offensive. What an antiqued view of the modern world. Christianity needs to wake up.
To Pierre de Vos:
What I don’t understand in your argumentation is (my preliminary point): on the one hand you argue there is no need to worry that the law on same-sex unions would change (“… it will not be easy to take away the right of same-sex couples…” and “…the Constitution will have to be changed first”) but simultaneously you also seem to be indicating a sense of fear by quoting the argument of those in favour of the re-introduction of discriminatory laws (your very next paragraph). My preliminary question: if it were not be that easy to change the law on same-sex couples anyway, why then put up an argument in the first place, whilst also using an argument proffered by those against it? Certainly you are already going into the defensive? This aside – my real point is: what I missed in your argumentation was (i) an allusion to the legal and societal implications of a possible abrasion of a constitutional right of same-sex couples, (ii) the consequences of such an abrasion to a young democracy like South Africa and (iii) the way ahead for a continued, strengthened and progressive South African Constitution committed to the protection of minority rights – be it gay rights, ethnic minorities, gender equality, wage equality and the like; rather than imparting a sense of fear and by playing the role of the victim (“The folks of NILC are a bit less tolerant, it seems…” or “… protect us from mob rule.”). In extension to your last-mentioned quotes, I would also have expected an argument from you as protagonist of gay rights to have differentiated between gays being “tolerated” (sounds like a social disease which is a social nuisance and which needs to be tolerated) as opposed to gays and other minorities being “accepted” (i.e. a complete and unconditional acceptance and integration by society). On simple principles of deductive reasoning and in terms of the tenor of your article, I guess you’d obviously be happier settling for second prize in terms of being “tolerated” rather than settling for first prize i.e. being accepted in society for who you are?
I am angry that there has been so little reference Judge Hlophe in this string.
Pierre, why are you ignoring the manner in which Hlophe JP has been crucified by racist liberals?
I just thank GOD that Pastor McCauley, a wise and immensely learned theologian, has come out in support of the JP.
Thank you Jesus.
I would like to know which faiths are said to be represented by the National Interfaith Leaders Council (NILC), as I would think that the mere fact that it is being heading by Pastor Ray McCauly doesn’t necessarily make it a “Christian” agenda.
I do hope that they afford the Pagan faith denomination a say on this council and allow them to contribute to the objectives the NILC aims to achieve.
@ Andy,
I agree with your viewpoint that a civil union is nothing more than a marriage with a different name. However, I was responding to an earlier comment regarding the use of the word “marriage” and how same-sex unions had affected that meaning. If my memory serves me correctly (again, I am open to correction here), the use of the term “civil union” was a means of appeasement to those so vociferously against same-sex “marriages” and the effect that this would have on the historical (moral and religious) connotations of marriage. Again, it is purely semantics and I would rather have preferred that they merely change the Marriages Act to include same-sex couples. However, in our country, there is a legal distinction between the two and the word “marriage” cannot be used to describe a civil union.
“THE ANC WILL RULE TILL CHRIST RETURNS AGAIN ….”
If this is not indicative that the ANC headed by Jacob Zuma does not have a spiritual character, then I don’t know what will. The Constitution clearly states in its preamble that ” MAY GOD PROTECT (OUR) PEOPLE”. Thus our religious and political leaders are mere vehicles in ensuring that this constitutional imperative becomes a reality.
MDF at 15.33
I am also very upset that Hlophe has slipped off the radar. But may I add, Mikhail, that you have also disappointed me by failing to keep that great legal mind, Nkola Motata, alive in these pages. I trust you will turn swiftly from Jesus and embrace the cause of Motata once more.
While I realise that many here have certain opinions on religion, I don’t see the need to talk about “fairy tales” and the like – you need to remember that not all religious people subscribe to the ‘force our views on everyone else’ idea – and that many don’t buy into the homophobic ideas we’re talking about…
Pierre I take it that you agree that there is a much more legitimate debate to be had around the abortion issue?
Just a thought: I wonder what the NILC would have to say about Zuma having unprotected sex with an HIV positive woman thereby pretty much imperilling his wives? And I wonder what they would say about Zuma’s hypocrisy in lamenting the fact that teenage pregnancy is at a disquieting level? Has Zuma thought about much of that happens?
It seems fairly clear that the NILC is an organisation of self-serving people out to impart its views on the masses whether they like it or not. And it will align itself with those who hold sway – and as it certainly appears, it is prepared to conveniently overlook the reckless selfishness and hypocrisy of those who can provide it with resources and a measure of clout. Truly, who would look to such people for guidance of any sort?
Let me just add that even though I am not religious, I think that Christianity may have something to teach us. The trouble is that I do not think that many christians do.
@ Leigh,
You have a path. It has led you to this point in your life and certainly, by what I have seen of your posts on this site, it is a path far superior to some of those who profess to be people of God. We don’t need to define our faith, unless we are religious. Nor do we require an intermediary between us and God to manage our relationship with Him, as all religions seem to stipulate. And I certainly do not require one of the so-called bastions of morality like Pastor Ray to speak on my behalf to God, Zuma or Parliament.
To my way of thinking, God made humans and in doing so, became 100% accepting of their fallibility. If we were infallible, we would be God. Accordingly, whatever our failings, our choices and our flaws, surely God, knowing that we are merely human, will accept us anyway? Who are we to make pronouncements on what is acceptable in the eyes of God? Personally, I have never heard Him denounce anyone – only his so-called mouthpieces appear to have the power to do so. And who appointed them?
Mikhail
Samantha, truly: thank you for your comments. It always amazes me that the very people who talk the loudest about salvation and condemnation are precisely the ones who ought to stop judging others and look at themselves. One phrase which they may want to remember is that is is perhaps best to wash one’s own clothes.
May I add, Mikhail, that you have gone up immensely in all our estimation now that you are championing Pastor McCauley as well as Judge Motata. Both men are clearly at the top of their professions/callings and it is hard to find their equal. I am sure that as a judge of character you are second only to Lindiwe Sisulu.
“Are they somehow worried that ordinary people would reject the fairy tales they tell every Sunday?”
I wonder if I said the following would it be offensive …
“No, they just wanna make you rethink your whole “peanut butter jar digging” fetish”.
Samantha says:
September 14, 2009 at 13:28 pm
“what would prevent us from taking on elements of Sharia (spelling?) law and chopping off the hands of thieves or stoning women for adultery?”
We’re pretty much there.
Those who have seen the insides of some of our overcrowded prisons will know what we do to some of those that we sent there.
Maybe we don’t directly accuse rape victims of being responsible, but we sure enough allow them to be treated that way (or worse).
The difference is we don’t provide the public gallery and we allow others to do the “dirty” work.
I’m with Andy on this point in particular:
~the way ahead for a continued, strengthened and progressive South African Constitution committed to the protection of minority rights – be it gay rights, ethnic minorities, gender equality, wage equality and the like;~
While the Prof’s concern with the position of same-sex unions is understandable and does well as an example, isn’t the door being left open because of a failure to address the larger issue of minority protection?
To my mind the core of the issue is the relationship between individual and group rights. Specifically, what circumstances (if any) allow group rights to override individual rights?
George:
good points about different kinds of right and left. It seems to me that this is not really a lurch to the right, but rather another manifestation of that pernicious “African nationalism”. I have been waiting for a mention of “traditional African values”, as we used to hear from Mugabe, etc., concerning gays.
Of course, I can’t quite see how Christianity fits in as a traditional African value, being a rather obvious import, but consistency never seems to be a strong point in these arguments.
Dave, I think you are correct to ask after the circumstances under which group interests or preferences would be allowed to prevail over or limit individual rights. And to my mind, the next question becomes: where do we turn to for for answers as to when a group preference could trump or restrict an individual right?
It seems that we would look to the inquiry contemplated in section 36 of the Constitution. That is, once it has been established that a right has been limited, the crucial question becomes whether that limitation was justifiable. And the way in which this latter question is to be answered is by reference to (a) the content of section 36 and (b) the constructions of that section that are reflected in the decisions.
Of course if you want a more detailed exposition, you would do well to ask either the Professor or Michael for further comment – I certainly would not presume to explain constitutional law at the best of times and let alone with those two in the house
Andy, I am sorry I that I did not write the post you wanted me to write. I decided to write what I thought instead. There does not seem a contradiction in the post (as you seem to suggest). One can assert that the Constitution would probably not be changed while still taking issue with those who wish to change it, making an argument for why their vision does not square with a constitutional democracy. Also, I take a dim view of the kind of people behind this initiative and therefore do not expect much from them. The law must fully embrace us in our diversity. The law must therefore do more than tolerate difference. But in the medium term its naive to expect that the folks at NILC could be persuaded to do more than tolerate those who have different views from them. My point is that they do not even seem to wish to tolerate those who differ from them. My post and the reference to toleration is therefore a harsh criticism of NILC.
I do not really see this as a clash between group and individual rights. The rights of the group is in no way affected by extending rights to gay men and lesbians. That is like arguing the right not to discriminate against black South Africans implicate the group rights of whites. That would only be true if one accepted that whites had a human right to discriminate against black South Africans. No such right exists. Neither do religious groups have a right to insist that the state discriminates against gays and lesbians. There are not two legitimate interests in play here as one could never argue that the human dignity of religious groups are affected because the law extends full citizenship to gay men and lesbians. To argue otherwise is to accept that gay men and lesbians might not be fully human and that their dignity may therefore be lawfully extinguished to give effect to the prejudiced beliefs of the majority.
Harold Ferwood
September 14, 2009 at 16:03 pm
My my how ignorant
Gay people (male) only make up about 6% of the world population.
In a study done by the UN it was found that it is overwhelmingly male heterosexuals (like you ?) who indulge in the peanut butter fetish with female counterparts. To spell it out for you, only a tiny percentage of gay males in the world have anal sex. The overwhelming majority of anal sex in the world is between male and female. Normally the religious zealots too. But 5 Hail Mary’s and your sins are absolved !
Duh !
For those who purport to know the Bible (Ray McCauley ?) :
The Bible considers divorce a far worse sin than homosexuality, as divorce signifies a break with Christ.
The lusty, wine-swilling McCauley has been divorced twice and stories of extra-marital affairs abound in his congregation.
Prof: The posted comments on your blog just get better and better. I also wish to say I admire you for being so open to the criticism I see blasted at you daily.
Mikhail: I think it was Leigh who tracked back to me that you are being ironic. Being cursed with no sense of humor, I don’t think I undestand irony, however, love your posts, reminds me of my brother. And yes, I’ve always liked European films, all that nudity, et al.
GK; not sure why you think Prof thinks the abortion issue needs revisiting. Can you enllighten me?
However, it appears the NILC is somewhat confused about the difference between the legal terms, ‘marriage’ and ‘civil union’. Bigoted prejudice does that I think, blinds you.
I for one will not live under the horrors of a religious state, should it happen here in beautiful South Africa which I believe (and pray) not, but if so, like Lassie I’d have to mossie on.
Prof: forgot one more thing; can you post the entire Constitution, not just the Bill of Rights. Its so easy to check things on a site you are familiar with.
sirjay: I’m not saying he does think that – just he seems to group the marriage issue with abortion so I’d be interested to hear if he feels the same way about abortion.
I think you’ve hit the issue on the head Prof: Individual rights vrs Groups. I for one will take this understanding henceforth, that first and foremost I am an individual, that I determine what is right and just in my life, but that I honor Ceasar where possible, but only if all are equal under the law. In religious, or rather in my case, spiritual approaches to the unknown, I was always led to understand that first, my duty is to the Maker (however I perceive That), second to the family, third to the community and world.
In that I’ve always understood that I, the individual, must act responsibly, I also insist I must be treated by my government legally, regardless of the minority or grouping I am in. Further, I expect this right for all others. This I will always demand as my human right, regardless of the challenge.
John Robert says:
September 14, 2009 at 18:03 pm
“The Bible considers divorce a far worse sin than homosexuality”
Homosexuality is considered a sin?
Maggs: it a religious warped thing, only the majority thinks it important. Not to worry.
sirjay jonson says:
September 14, 2009 at 19:10 pm
Majority?
As far as I can make out, the majority are concerned with food, shelter, clothing and jobs – sexual preferences, except in a few instances, are irrelevant.
Which religions regard homosexuality as a sin?
Maggs: I work with the majority in the townships. I actually believe what they really think about most is pleasure, with their children, partners, sex, possible partners, the shabeen, hoender braaie, the soapie, and meeting the next day.
Sexual preferences are also huge in the communities… heard the term ‘moffie for example, also, what the domestics gossip about, who’s sleeping with who… I think it’s only we educated who think about much else.
Activists try to awaken them, often for their own ends, but lack of food, ill health, domestic, child and sexual abuse, well, sweet cheap wine makes it all acceptable. And anyway, what is Goverment, something out there in the ethers… driving neat cars.
@Maggs
The Bible says God considers homosexuality an “abomination”.
I guess that qualifies as sinful ?
Hypothetically speaking if these freaks were to bring such an application, and hypothetically if the ConCourt was stacked with Zumanites ….. how and who would defend this or argue against them ?
John: regardless of the Bible as a guide, which afterall is only one of the world’s great religious books, that two or more people, reg ardless of their sex, pleasuring each other in a world which is understateldly difficult, and then often with love, is a sin, gawd, give us all a break.
I’m not a Christian, but I love the activists Jesus’s quote about: Love one another as yourSelf”, or words to that effect.
What is a sin? Is corruption, thievery, control of the people, dishonesty and manipulation for personal enrichment, is that not a sin, is it not more a sin than sexual inclinations? For two or three or more to love each other, regardless of their sex, to pleasure each other within the turmoil of life… is that’s a sin within the priorities of life? I think not.
What is a sin in my mind is to destroy a country, to seek personal enrichment before the needs of the people, to undermine the law and the Constitution which protects ALL, that’s a sin.
We need to get our priorities straight. Let other people live without our moralistic and backward prejudices and criticisms…. whats matters is equality under the law, what matters is our Constitution which protects all without fear or favour…. if practised with vigour.
John Robert says:
September 14, 2009 at 19:42 pm
Interesting comment.
If it entertained this nonsense, the CC would have sunk to the same depths of depravity.
Pierre,
Pop quiz, which one of our presidents signed the laws that this group is, supposedly, trying to get repealed?
You should always know who your friends are, my friend.
….. But we all don’t have the same belief structure. All South Africans are under the “umbrella” of the Constitution which upholds equality for all citizens irrespective of one’s “… gender, sex, sexual orientation…” So even though it may be “intrinsically disordered”, the country allows for homosexuals not just to live in the manner they choose but also to “marry” whom they choose. We as a nation, with an extremely jaded past of discrimination and oppression, are striving to create a society of equality and basic human dignity and freedoms for all its citizens. This will never reach realization if even one section of society is marginalized, which is currently occurring with the presence of both the Marriage Act and the Civil Union Bill. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples.
Is there a solution? A complex and comprehensive proposal was put forward in a memorandum by the South African Law Reform Commission. Arrived at after extensive public consultation over several years, this would embody a single comprehensive legislative scheme and not set out a range of options for the Legislature. It calls for a new generic marriage act (to be called the Reformed Marriage Act) that would be enacted to give legal recognition to all marriages, including those of same and opposite-sex couples and irrespective of the religion, race or culture of a couple. However, the current Marriage Act would not be repealed, but renamed only (to be called the Conventional Marriage Act). For the purposes of this Act, the status quo would be retained in all respects and legal recognition in terms of this Act would only be available to opposite-sex couples. It would entail no separation of the religious and civil aspects of marriage, and ministers of religion (or religious institutions) would have the choice to decide in terms of which Act they wish to be designated as marriage officers. The state would designate its marriage officers in terms of the Reformed Marriage Act.
But it would not solve the problem of ministers of religion objecting on the grounds of going against their “…religion, conscience, belief…” enshrined in section 9 of the Constitution. Therefore discrimination will be continual. Unless there is one act and it is a state-legislated one i.e. Civil Union Bill. Abolish the Marriage Act and permit everyone to be allowed to get married by law and to have the religious ceremony, if there is one, separate. This will allow the burden to be taken off ministers of religion who are marriage officers. It will also follow in the spirit of the Constitution of equality.
But the Marriage Act is discriminatory by nature. In the section of Prohibited Marriages in the Marriage Act it is clearly defined which persons may not marry. Therefore these persons may be able do so under the Civil Union Bill. Which raises the question whether incest should be legalized and if not, on what grounds?
Then another question arises, how far will we go in the quest of the “perfect” society? In May 2006 pro-paedophile activists established a new political party in the Netherlands to campaign for the legalization of sex between adults and children. The “Naastenliefde, Vrijheid en Diversiteit” (NVD) were ruled by a Dutch court to have a right to exist, after children’s rights groups sought to ban it. They were unsuccessful in their attempts, but it is clear this starting of possible trend. Many will dismiss this as outrageous and cynically write it off with statements such as “Netherlands and South Africa are different countries”. It must be remembered that South African Law is closest to the system existing in the Netherlands. Many ‘advancements’ made in the Netherlands has followed suit in South Africa i.e. legalizing of abortion and same-sex marriages. It will continue with the legalization of incest and prostitution.
Are our country’s people ready for these changes? We are a first-world country with third-world problems and mindsets. Almost 13 years into our new democracy and we are still struggling with the race and colour issue. The painful task of meshing our indigenous cultures with our western influences must first be done before allowing ourselves to incorporate legislation that will define us.
John Robert says:
September 14, 2009 at 17:56 pm
Sadly it is you that is ignorant. The condescending and outright atheistic view expressed by the Professor in the statement I highlighted is fundamentally just as bad as mine. You do not have the higher ground as your views are merely an opinion and ironically is systematically being chipped at everyday.
Those “fairy tales” he speaks of is the last source of the Public Morality he so desires.
Romans 1 v 28, “furthermore, since they did not think it worthwhile to retain the knowledge of God, he gave them over to a depraved mind; to do what ought not to be done”.
Khosi, yes, its that guy who also questioned the link between HIV and AIDS and stood by while hundreds of thousands died of Aids related illnesses, so despite signing that legislation he is not my hero. In any case he HAD to sign. Ramaphosa who negotiated the Constitution and the judges of the CC had more to do with the passing of the law that Mbeki. A President MUST sign legislation passed by Parliament unless he thinks it was not procedurally correctly passed or is unconstitutional. There is no veto right. And Parliament had to pass the legislation because that is what the CC ordered.
~I do not really see this as a clash between group and individual rights. The rights of the group is in no way affected by extending rights to gay men and lesbians. That is like arguing the right not to discriminate against black South Africans implicate the group rights of whites.~ Pierre.
I think my tiny little mind just exploded. Could I trouble you to rephrase that last sentence?
Dave – ja that sentence doesn’t compute in my mind either – starts off interestingly then eats its own tail ….
I still say that it is by rigorous application of the principles of UBUNTU that we can best accommodate the legitimate rights of groups and individuals. Many of the fruitless dichotomies of colonial jurisprudence dissolve in light of non-colonial normative systems. And I can think of few better to steward the process that Justice Motata.
http://www.mg.co.za/article/2009-09-14-cops-gun-down-six-in-cashheist-shootout
I’m glad to see my request for reinstatement of the “death penalty” hasn’t fallen on deaf ears and some are already doing “road-side campaigning”. It seems the Constitution doesn’t have to be amended.
@Pierre De Vos
But my friend, that very guy was also the leader of the ruling party that tabled the very legislation in parliament. It was well within his powers not to initiate the process. Some sections of our society blame that very guy for ‘bringing gays into communities and giving them rights’.
And never forget, the ANC under that guy, had the power to change the constitution. I am sure the likes of ACDP would have helped the cause.
Dave A, my example was meant to suggest that the prohibition on discrimination against black South Africans do not implicate the group rights of some whites who might believe it is part of their culture or religion to discriminate against black people. The Afrikaner Protestantse Kerk, for example, believe God wants to keep the races apart. If they argued that laws forcing us to integrate with one another and allowed inter-race marriage infringed their rights, they would be making much the same argument as those saying that extending full citizenship and rights to gay men and lesbians infringe their group rights.
The Civil Union Act DOES allow same-sex couples (AND different sex couples) get married and to call their union a marriage (but they can also choose to call it a civil union if they believe marriage has terribly patriarchal connotations). Religious groups may refuse to marry same sex couples (as they can refuse to marry someone who is not from their church or is an athiest etc).
@ Pierre De Vos
“Religious groups may refuse to marry same sex couples” – cant they can be hauled before the equality court?
Maggs, no, freedom of religion is guaranteed in the Constitution so if a religious group believes homosexuality is an abomination they are entitled to hold that belief and practice their religion accordingly. If they believe women are simpletons and should not hold religiuos office in their church that is also ok. Same with a religious group who believes it is sinful for white and black people to mix. As long as they do not expect the law to enforce their weird (and obnoxious) beliefs on others, they are free to believe what they want. I believe I’ll have another glass of wine. . . .
Before lunch? I suggest rather that special Tea everyone speaks about.
To Harold Ferwood:
I’m referring to your previous contribution toward the top of this page. I’m afraid I’d have to disagree with you. You say that “South African law is closest to the system existing in the Netherlands”. This may be true only to the extent that we “cosmetically resemble” the Dutch law (and to a small extent only) but in practise we follow our own substantive law (with Dutch influences of Grotius etc). It is therefore incorrect to create the impression (like you do) that South African law actively follows Dutch law decisions, substantively or otherwise. Accordingly, it is also incorrect to suggest that “… Many ‘advancements’ made in the Netherlands has followed suit in South Africa i.e. legalization of abortion and same-sex marriages.” This is quite simply wrong. South Africa did not legalise abortion and same-sex marriages following (and because of) any Dutch model respectively following any Dutch legal decision. Your conclusion in saying “It will continue with the legalization of incest and prostitution (and I take it your reference here to these issues is in respect of some Dutch legal decision too) is factually wrong and conjecture. Besides, the legalisation of prostitution (not incest) in many countries has proven to be of immense value to these societies (the prostitution-related crimes have decreased, tax evasion has been reduced – in the Netherlands prostitution is a profession like any other and prostitutes therefore pay tax like any other person (!), health education among prostitutes is at a higher level – with Aids-related diseases having gone down to some extent (something we cannot maintain of South Africa!), etc. In Germany, prostitution is only allowed when it is performed within a brothel – thus keeping the girls off the streets and avoiding the intrinsic criminal dangers they are exposed to. Brothels are also subject to paying taxes, so are prostitutes working in these brothels. In short, there are more economic and socially good reasons for the legalisation of prostitution than there are not. I think it’s time we stop demonising prostitution as a social evil and that we start dealing with it in a manner of reason. Based on your argument, you cannot on the one hand plead for the equal rights of homosexuals (as you do in your first two paragraphs) but on the other hand say we need to treat prostitutes as social outcasts and by implication, also pleading against the legalisation of prostitution. This for me is a patent contradiction in terms.
@Pierre de Vos
@Mags Naidu
Surely this can be challenged, their right to freedom of religion must be balanced against the right to equality, they cannot refuse you to join their church because of your ethniticity, sexual orientation etc.
Also their tax status should be reviewed…
Pierre: I very curious to get your view on the following:
You say a crazy religious sect that excludes women or blacks is constitutionally OK, provided they do not impose their views on others.
But say our racist sect is having a service in their chuch in Gardens one Sunday morning, and a black man walks in.
They ask him to leave. He refuses.
They now call the police, and charge him with trespass.
May the crazy sect thus call the power of the state to help enforce their racist exclusion?
As you will know, I am raising the thorny Shelley v. Kramer/”state action” problem. Is there an answer under SA lawr?
Pierre, the use of the labels ‘left’ and ‘right’ is conflating the issue. The ANC is moving to the Left on economic issues, but to the Right on social issues. Essentially authoritarian and nannystatish in every way.
Pierre De Vos says:
September 14, 2009 at 21:26 pm
Prof. If my memory serves me well, Mbeki was abroad when that law was passed. I believe the person who signed that Act was Phumzile Mlambo-Ngcuka, the then Deputy-President.
Pierre De Vos says:
September 15, 2009 at 10:31 am
“If they believe women are simpletons and should not hold religiuos office in their church that is also ok.”
I was under the impression that the Tinyiko Shilubana ruling changed that kind of thinking.
Maggs, no. Religious beliefs and peractice is treated differently from custiomary law rules and practices.
Michael, as you would know there is no CC case in SA confronting the Shelly v Kramer issue head on. However, if one uses the same logic employed by the CC in the same-sex marriage case in Fourie, I suspect that the police would have to assist to safeguard the right to property and freedom of religion of that crazy sect. (It would be different if the property did not belong to a sect or was not sued by a religious sect, but by an owner of a holiday resort, because the freedom of religion right would not be implicated). If one agrees with Sachs in Fourie that there has to be an accommodation between the secular and the sacred and if one further agrees that religious worship is at the very heart of religious freedom, the right of the black person will probably have to yield to the rights of the religious crazies in your example (my hunch). In my view the CC sees this as a matter of degree. If that same religious sect refused to employ a black person as a secretary it might have trouble as admin tasks have little to do with religious views and practice. This was the argument adopted by the High Court in the case where the gay organist was fired by the Dutch reformed Church and the Church was ordered to pay him compensation.
Yes, Pierre, I think you are right.
I recall now that you mention the CC that Kriegler J in Du Plessis v De Klerk ruminated on the Shelley problem, but ended up in a rather odd, and unsustainable, position that all human conduct (and omission!), is “state action.” As for Derrida there is “nothing outside the text,” so for Kriegler J there was “nothing outside the law.”
Is JZ going to revisit laws which legalise polygamy? Someone should warn him that’s a slippery slope he’s starting down…
Pierre De Vos
September 15, 2009 at 8:38 am
Thanks for expanding on that line of thought, Pierre.
Should they decide to change the constitution in particular the bill of rights, how long will such a process take.
In my view to change the constitution when you do not like the ruling of the court is the same as to fire to judges until a judge rules in your favor.
To deny gays and lesbians equal rights that includes gay marriage as at present, to take that right is granting heterosexual people special rights and that is immoral
I really dont know why you persist in misrepresenting the situation relating to prostitution in countries where it has been legalised or decriminalised. You are doing South Africans, and particularly women, a grave disservice by doing this. The picture is not rosy at all in these countries. I suggest you do a little research on what is happening in the Netherlands and why they are retreating from the policy of decriminalisation. I also suggest you read the report by the German Federal Govt regarding the Prostitution Act. They conclude that none of the objectives of decriminalisation have been achieved and that there is little likelihood that they will be achieved in the future. In Australia, where just about all the various decrim/legalisation models have been tried, the illegal part of the sex trade amounts to between 80 and 90 % in all the States. In New Zealand, cities such as Manukau are pleading with the Govt to repeal the Prostitution Reform Act, or give them more powers to control prostitution. Most of this info is easily available. Prostitution is a complex and very damaging activity to the women themselves as well as others in society. It is such a pity that some South Africans, especially in academia, have chosen to take an ideological approach to prostitution that ignores the very essence of what prostitution is really about. I also suggest that you read some of the research by Melissa Farley to be found on her web site, Prostitution research and Education, regarding the trauma and harm experienced by prostitutes. One of the pieces of research includes South Africa. There are so many organisations who work with prostitutes and have done research in this regard, such as the Coalition against Trafficking in Women International; Shared Hope International; Lola Greene Baldwin Foundation; and, of course, Straatwerkers in Cape Town. Stop ignoring them. Then there are the Scandinavian countries, who only have reputations to lose regarding gender equality, that are showing that there is another way to approach prostitution that places the blame where it belongs – on the johns – and seeks to assist women out of a very difficult situation. Maybe we should not be worrying about what labels to give judges and just focus on doing the best research and formulating the best policies for all South Africans
i still watch Boston Legal because for me, this is the best coutroom drama TV series;;”