The difficult choices facing Chief Justice Mogoeng

The appointment of Chief Justice Mogoeng Mogoeng has elicited much comment, but conceptually the most difficult but also the most interesting aspect of the debate about his suitability for the office of Chief Justice, centres around his obviously sincerely but strongly held religious views. Justice Mogoeng belongs to a church (and is a lay preacher in that church) called Winners Chapel International, which condemns homosexuality as a disease that can be cured. During his interview Justice Mogoeng claimed that God wanted him appointed to the job. He said he prayed and got a sign that “it was the right thing to do”, after President Zuma nominated him.

Section 15 of the South African Constitution states that “[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion”. Should this, then, not mean that the justice Mogoeng’s involvement in his church as a lay preacher and the fact that his church espouses values that are in direct contraventions of Constitution (as the Constitution explicitly protects gay men and lesbians against unfair discrimination and guarantees respect for their inherent human dignity), should not disqualify him to be Chief Justice? After all, if justice Mogoeng cannot become the leader of the judiciary because he belongs to a church which holds deeply demeaning views about a  section of the population explicitly protected by the Constitution, large numbers of judges would be similarly disqualified.

For example, anyone belonging to the Catholic Church, an institution that has its own problems with dealing with child rape and explicitly discriminates against women, would be disbarred from being Chief Justice. And what about members of the Dutch Reformed Church (also known as the NG Kerk), an institution which not so long ago still claimed there was scriptural justification for the policy of apartheid and even today has not managed to unify with its sister churches created during the apartheid era for “coloured” and “african” worshippers? Surely members from these churches should then also be ineligible for the top spot on our judiciary?

Our Constitutional Court has always had difficulty with the matter of religious freedom in cases where it has been called upon to decide how to balance, on the one hand, respect for the religious views and practices of all against, on the other hand, the broader interest of society and the protection of the rights of everyone enshrined in the Constitution. In the Lawrence case, justice Chaskalson, once again borrowing from the Canadian case law, endorsed the view that:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

This right has both an individual and a collective aspect. As justice Sachs stated in the Christian Education case:

This broad approach highlights that freedom of religion includes both the right to have a belief and the right to express such belief in practice. It also brings out the fact that freedom of religion may be impaired by measures that coerce persons into acting or refraining from acting in a manner contrary to their beliefs. Just as it is difficult to postulate a firm divide between religious thought and action based on religious belief, so it is not easy to separate the individual religious conscience from the collective setting in which it is frequently expressed. Religious practice often involves interaction with fellow believers. It usually has both an individual and a collective dimension and is often articulated through activities that are traditional and structured, and frequently ritualistic and ceremonial.But this is not the end of the matter. As is the case with all rights, freedom of religion can be limited.

These passages seem to suggest that someone like Justice Mogoeng should be allowed to believe what he wishes and also to practice his religion by acting as a lay preacher in his church — no matter how homophobic or sexist (and hence in contravention of the Constitution) the doctrine of that church might be — and that he should not be forced to decide between his right to believe and practice his religion, on the one hand, and his job as Chief Justice, on the other hand. If he were to be forced to choose, so the argument goes, this would entail an attempt at coercing  a person not to believe or practice his religion — something not permitted by our Constitution.

But this is not the end of the matter. Like all other rights contained in the Bill of Rights, the right to freedom of religion is not absolute and can be limited. Thus the Constitution requires each judge to swear the following oath:

I, A.B., swear/solemnly affirm that, as a Judge of the Constitutional Court/Supreme Court of Appeal/High Court/ E.F. Court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.

It therefore requires all religiously devoted judges who belong to any number of mainstream and not so mainstream churches to choose between being faithful to their religious beliefs or being faithful to the Constitution and the human rights enshrined in it. If an individual cannot promise that he would disobey and completely disregard his personal religious beliefs about, say, the perceived god given rights of the man to head the household or the belief that homosexuality is a perversion and a lifestyle choice that can and must be cured by prayer, that individual cannot — in all good conscience — become a judge at all. That is why justice Mogoeng’s failure to provide reasons for his “dissent” in the Dey case appears so troubling. By dissenting but not giving reasons he might well have tried to obey both his judicial oath and the injunctions of his faith — something that was clearly impossible and impermissible to do.

In the Christian Education case — as in many other cases dealing with questions about legislative limitations placed on religious beliefs and practices — the Constitutional Court reverted to the limitation clause to try and balance the interests of believers against the broader interest of society and against the rights contained in the Constitution. In that case a group of Christian schools challenged the provision in the Schools Act which prohibits corporal punishment at school, arguing that the Christian Bible commands teachers to assault learners when learners have broken the rules as the Bible states that if one spares the rod one spoils the child.

In a sensitive and carefully crafted judgment, justice Sachs found that the case required the court to apply the proportionality test as set out in the limitation clause and that the real question was whether the failure to accommodate the religious belief and practice of some by means of the exemption to the ban on corporal punishment in schools could be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality. As Sachs pointed out, this balancing of interests will often be very difficult in freedom of religion cases and it is worth quoting Sachs’ judgment in this regard at length:

The most complex problem is that the competing interests to be balanced belong to completely different conceptual and existential orders. Religious conviction and practice are generally based on faith. Countervailing public or private concerns are usually not and are evaluated mainly according to their reasonableness. To the extent that the two orders can be separated, with the religious being sovereign in its domain and the state sovereign in its domain, the need to balance one interest against the other is avoided. However religion is not always merely a matter of private individual conscience or communal sectarian practice. Certain religious sects do turn their back on the world, but many major religions regard it as part of their spiritual vocation to be active in the broader society. Not only do they proselytise through the media and in the public square, religious bodies play a large part in public life, through schools, hospitals and poverty relief. They command ethical behaviour from their members and bear witness to the exercise of power by state and private agencies; they promote music, art and theatre; they provide halls for community activities, and conduct a great variety of social activities for their members and the general public. They are part of the fabric of public life, and constitute active elements of the diverse and pluralistic nation contemplated by the Constitution. Religion is not just a question of belief or doctrine. It is part of a way of life, of a people’s temper and culture.

The result is that religious and secular activities are, for purposes of balancing, frequently as difficult to disentangle from a conceptual point of view as they are to separate in day to day practice. While certain aspects may clearly be said to belong to the citizen’s Caesar and others to the believer’s God, there is a vast area of overlap and interpenetration between the two. It is in this area that balancing becomes doubly difficult, first because of the problems of weighing considerations of faith against those of reason, and secondly because of the problems of separating out what aspects of an activity are religious and protected by the Bill of Rights and what are secular and open to regulation in the ordinary way.

In the Christian Education case, the Constitutional Court found that given the fact that parents could still chastise their children at home, given — further — that the Constitution placed a positive duty on the state to try and create a society free from violence and to protect children from physical and emotional harm, and given the importance of the right of everyone to have their bodily integrity protected and respected, it was not unreasonable to limit the rights of freedom of religion in this limited way. Religious believers who wanted to impose corporal punishment could still do so at home, but the interest of the state to create violence free zones at schools allowed it to ban the practice of corporal punishment in these more public arenas.

I suspect much the same argument could be used regarding justice Mogoeng’s beliefs and his role as a lay preacher in a homophobic church. While he must surely have the right to believe what he wishes about women and homosexuals and why he has every right to be a lay preacher in a church that propagates hatred against homosexuals, he should surely not have a right both to be Chief Justice (requiring him to protect gay men and lesbians from discrimination, hatred and harm) and to remain a lay preacher in his church which does exactly the opposite.

I for one would therefore contend that it would be appropriate for Chief Justice Mogoeng to resign as a lay preacher from his church — at the very least. When it is impossible to serve two gods (the god of one’s religion on the one hand and the “god” that is the supreme Constitution on the other) one surely has an ethical — perhaps even a legal and constitutional — duty to choose the one or the other. If one refuses to choose, one’s integrity and honesty might well come under suspicion.

I am not claiming that such choices will always be easy to make. They will often not be easy at all. Given the sincerity of many people’s religious beliefs (including, clearly, that of Chief Justice Mogoeng), given — further — the often deeply personal and strongly held beliefs many people have about their religion and their church, and given the pull of ambition, status and power that might make contradictory demands on one’s conscience, these decisions might well (in certain cases) be agonising and seemingly impossible to make. But that does not mean that one should not make them if one wishes to live an ethical life.

Thus, if I were ever offered a lucrative position, say, to head a private University in the United States that is funded by the Catholic Church and professes to adhere to the teachings of that church, I will have no choice but to decline that offer — even if it would mean a much larger salary, far more status and more influence and power. Life is not always easy and it is seldom fair — especially to those with strong and inflexible principles and beliefs.

Justice Mogoeng has a difficult choice to make. I trust he will choose well.

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