Constitutional Hill

On freedom of religion and the gay music teacher

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.

  • NM

    Thank you, Prof! I cannot agree with you more.

  • Friend

    I’m in.

  • Anonymouse

    I agree – the compromise approach by Dion Basson is consistent with the Constitution in every respect, and ‘freedom of religion’ and ‘freedom of association’ remain unscathed. Good post.

  • Peter

    All seems a bit counter-revolutionary to me, after all, his mighty eminence, the royal must be leader, the revolutionary of all revolutionaries, Jacob Zuma, says he just sommer moers moffies when he sees them.

    My sense is that large swathes of our poeple are extremely homophobic, and probably close to 100% of the Zuma support base. It is sad that this ruling will provide further amunition to the Malema’s of this country in their populist attack on the judiciary, as in, you see, these courts are just for fancy rich white liberals and coconuts as we know that this gay thing is not in black culture…

    Good to see the ol’ NGKerk, with all its last stand patriachal homofobes and racists, get a good klap for a reality check.

    I love this country!

  • NM

    I always have trouble trying to wrap my head around the fact that some people – e.g. Dr Burger above, seem to think that other people having the most basic of human rights, such as marriage or freedom from discrimination, somehow “tramples on” or “dilutes” their own rights. Even people who have fought and sacrificed so that all South Africans could be equal, squeal at the thought of ALL South Africans being equal. Seems that some will always be just a little bit more equal than others..

  • Sne

    After reading the judgment, I have to fully agree with you Prof…

    NB: Believe me Prof I do not like agreeing with you; that stifles debate on this blog.

    For those who want a direct access to the judgment, visit;

    http://www.saflii.org/za/cases/ZAGPHC/2008/269.html

  • Henri

    Thanx Sne for that link! I didn’t know about this Saflii org. Who are they? They must be with these opensource judgements a serious threat to Butterworths.
    But there’s something wrong in the settings of their website – it everytime bamboozles everything on my side so that I must logof to get levelheaded again. Would rather avoid the site till they’ve sorted themselves out.
    But it’s really something for freedom and availability of legal information!.

  • Sne

    Henri // Sep 3, 2008 at 1:37 pm
    ………………………………………………..

    My absolute pleasure Henri.

    Well, to answer your question. You need click on ‘Home” when you have accessed that website. It will take you to a page whereby you can learn about the origins, etc. of that site.

    Pertaining to your concern about pop-ups when you access that site, you need to block them on your browser settings.

    Happy browsing…

  • Henri

    Yes Sne,
    But it is exactly when I dare to click on “Home” that the site execute a spear tackle on me as if it is The Beast itself.
    Eish……

  • Mdu

    Sne, thank you for the link and I likewise agree with the Prof. on this one again but Peter can you just leave Zuma out of it once, seems to me you’re obssessed and in love with him and you hate that fact and you also seem to be detesting this judgment implicitly, that’s sad!

  • Nick

    Pierre, do you mean Nazi Germany? Seems to me that the modern German state does not deserve to be lumped together with Iran in an Axis of Intolerance…

    Otherwise, I agree wholeheartedly with the article.

  • Samaita

    I always use http://www.saflii.org. It provides a wide collection of superior court case law from the Southern and Eastern African regions. It is a wonderful development and has enhanced my research. They publish judgments immediately upon its handing down. They publish all judgments and simply reportable ones.
    You can write to data@saflii.org for queries/comments and requests and they are really helpful. They even send judgments on request.
    I get my updates from the RSS. All lawyers, academics, students, etc ought to know about this site Prof. Maybe you may recommend it to your class.
    I understand SAFLII is a project of the Constitutional Court Trust.

  • Peter

    Mdu – Pierre, he taught me that everything leads back to oom Jacob.

    And I really do love this judgement, despite how my weak digs at Zuma might read. The NGK was so unfathomably wrong in this case, as bad if not worse than their apartheid days. And an irony is that so very many dominees are gay – methinks the lady doth protesteth too much and all that…

  • Rita

    This is a great Judgement! I was approached a very long time ago by a rather upset music teacher who was getting nowhere fast with his Equality Court application. I encouraged him to continue with the action and was delighted to read of his success!

    I agree with Pierre’s analysis, but the earlier Constitutional Court Judgements are also helpful where the Court tried to distinguish between policies and practice which was core to the religion as opposed to peripheral (or I’d like to say “man-made” issues). Of course religious rights v beating defenceless children, for example, is a relatively easy issue to square. But I was shocked at the weekend to hear the Pastor at a friend’s wedding bad-mouth gay marriages during the service. It was completely irrelevant to the couple before him and I saw it as purely homophobic so I walked out. I think I had the words of Bishop David Russell ringing in my ears from the weekend before when he said, quite simply but powerfully, that he had yet to find a homophobic Christian who could genuinely say that he or she believed that if Jesus Christ was alive today, he would reject homosexuals rather than embrace them. Now if that does not go to the core practice of a religion ostensibly founded on the so-called teachings of Jesus, then what will?

  • Henri

    In Mouw 1994[2] SA 240 WLD at 243C it was argued that “religion is a notorious fomenter of disagreement and dissension”.
    In Christian Education 2000 [4] SA 757 CC at 778D Sachs remarked that religion is part of “…a people’s temper and culture.” Within the context of the profs post, it says a lot of the NG churches’ typical congregations’ approach to these type of issues.
    And in practice we get a lot of cases about dissension WITHIN churches – and believe me, they’re absolutely incapable of settlement.
    In life you don’t get people more unforgiving than dominees. So to come to terms or accept a gay teacher in their midst …. impossible.

  • Mdu

    Rita

    Thank you very much for giving me ammunition of Bishop David Russell for I have been accused myself of having Gay friends, and even questioned if I am homosexual, by people who claim to be christians, yet amazingly full of hatred for people who are not heterosexual.More mindbogglingly, I find that some gay men detest lesbians!

  • Stephen.M

    Up until most of the population,i mean most of the so called revolutionaries, come to terms with the real implications of gay rights,we are still in for more gay and lesbian “killings”.

  • Ron Steele

    It seems that when we are on different sides of the fence we often use exaggerate our language. Dr Isak Burger is in no way advocating “religious tyranny”, but is expressing a concern about freedon of religion.

    Also the issue is not about hating or despising Gay people, it’s abouta difference of opinion about sexual and social relationships.

    We all meet and mix with Gay people everyday of our lives whether we know it or not. Gays do attend so-called conservative churches and are not ostracised or banned.

  • Samaita

    Just to let you know that the Zille judgment is now available free on line on http://www.saflii.org. to read it please follow this link:

    http://www.saflii.org/za/cases/ZAWCHC/2008/52.html

  • Sne

    Samaita // Sep 4, 2008 at 2:16 pm
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    Thank you colleague… Keep up the good work… ;-)

  • Erma
  • Mqo

    I concur fully with the judgement (and your analysis Prof).
    What a judgement!!!

  • nkululeko

    Yes, I finally join the party.
    This is really one for the record books, the bloggers unite in agreement on an issue. Its quite sad that some of our most vocal members, like Lindelani – big JZ fan, didn’t join in the party.

    Anyway, this reminds me of “One Voice” by Barry Manilow:
    ‘Just one voice singing in the darkness
    All it takes is one voice
    Singing so they hear what’s on your mind
    And when you look around you’ll find
    There’s more than one voice singing in the darkness
    Joining with that one voice’

    What is scary is that my parents are members of the Apostolic Faith Mission. That probably explains why I don’t attend regularly. Pastor Agrippa Khathide, and his wife, regularly speak out against the evil that is homosexuality. I have always wondered how Christian it is not to love your neighbour as God has loved you.

    This is a good reflection on our law but shows how our society will take a while to catch up.