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

Thanks for expanding on that line of thought, Pierre.

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.”

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.

“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.

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.

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?