As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Last week two women who were turned away when they tried to book the Beloftebos Wedding Venue for their wedding reception, announced that they are taking the owners of the venue to the Equality Court. The owners of Beloftebos claim that they have a right to discriminate against same sex couples because their religious beliefs require them to do so. They are mistaken. This is why.
Christian privilege is deeply rooted in South African culture. Because Christian religion is the dominant religion in the country, Christian belief is sometimes treated as a social norm, and this produces unconscious or conscious attitudes and beliefs that advantage Christians over non-Christians.
Christian privilege manifests itself when Christians demand to define for themselves which laws they will obey and which not, and when they insist that they enjoy a special right (not afforded to non-Christians) to discriminate against LGBTQ people because they claim their religion does not recognise the equal dignity of LGBTQ people and thus requires them to discriminate against us.
In Christian Education South Africa v Minister of Education, the Constitutional Court rejected this view and thus rejected Christian privilege. In that case a group of Christian schools claimed that legislation prohibiting corporal punishment in schools unjustifiable infringed on their right to freedom of religion because Proverbs 13:24 of the Christian Bible say something like “spare the rod and spoil the child”. The highest court in the land disagreed, stating that while an open and democratic society that celebrates pluralism must try and accommodate different beliefs and practices, this does not give religion a free pass, as:
such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land.
Despite the clear principle set out above, the owners of Beloftebos (and their supporters) mistakenly continue to argue that the right to freedom of religion always (or at least usually) trumps the right not to be discriminated against, when the opposite is true. I have previously argued that the position taken by Geloftebos is an unethical and reactionary position that privileges the feelings and beliefs of some Christians over the dignity, well-being and safety of LGBTQ people.
But from a legal perspective it matters not whether you agree with me that the actions of the owners of Beloftebos are immoral and lacking in basic humanity. What matters is that the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) – as interpreted by our courts – prohibits the kind of discrimination that Beloftebos is guilty of. Which is why they going to lose badly when the case goes to court.
PEPUDA establishes a two-stage test to determine whether there was unfair discrimination or not.
The first step is to establish whether the different treatment is based on one of the prohibited grounds of discrimination – grounds like race, gender or sexual orientation. If the different treatment is based on one of these prohibited grounds, discrimination has been established. In the case of Beloftebos the different treatment is clearly based on sexual orientation, which means that Beloftebos is discriminating against LGBTQ people.
PEPUDA does not prohibit different treatment not directly or indirectly based on one of the prohibited grounds. Treating lawyers differently from doctors, or treating people wearing Crocks differently from people who would not be seen dead wearing Crocks, does not constitute discrimination. The genius who argued on Twitter that a ruling against Beloftebos would mean that a porkchop wielding client would have a right to enter a Muslim business, failed to understand this. A quick glance at PEPUDA confirms that it does not prohibit discrimination against porkchop eaters.
The second step prescribed by PEPUDA is to establish whether the discrimination is unfair or fair. Only unfair discrimination is prohibited. Once it is established that there is discrimination on one of the grounds listed in PEPUDA it is presumed that the discrimination is unfair. This means that Beloftebos would carry the onus of proving that their discrimination against LGBTQ people was fair and therefore legal.
Section 14(2) and (3) list the factors that must be considered when a court decides whether the discriminating party had proven that the discrimination is fair. The unfairness test under section 14 of PEPUDA is a proportionality test requiring a balancing of various interests. A court must thus weigh the relevant factors listed in section 14(3) and (4) to decide whether the discrimination is fair or unfair.
First, the court will ask what the impact or likely impact of the discrimination will be on the victims of the discrimination and what the nature and extent of the discrimination is. The greater the impact and the more serious the discrimination, the less likely that Beloftebos will succeed in proving the discrimination is fair.
The Constitutional Court already pointed out in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice that discriminatory impact goes far beyond the denial of a service to individual complainants. This is because discrimination against vulnerable, marginalised or oppressed groups “reinforces already existing societal prejudices and severely increases the negative effects of such prejudices on their lives”.
It matters not that it may be possible for the couple in question to host their wedding somewhere else, because the harm caused by the discrimination extends far beyond the couple against whom Beloftebos discriminated. When private companies like Beloftebos discriminate against people on prohibited grounds, it reinforces the widely held belief (backed up by powerful religious institutions) that LGBTQ people are somehow not worthy of equal concern and respect. It sends a signal that some individuals are not full and equal citizens and are not deserving of equal concern and respect.
It is because of the broader harm caused by such discrimination, why somebody like myself – who is not keen on the institution of marriage and would not in a million years have celebrated my wedding at Geloftebos if I had been keen on the institution – nevertheless feels it is important to approach a court to stop Geloftebos from continui8ng with its discrimination.
Second, the court must ask whether the complainants suffer from patterns of disadvantage or belong to a group that suffers from such patterns of disadvantage. If the complainants are socially or economically privileged (because they are white, or male or Christian or – jackpot – a combination of the three) they will have a difficult time in convincing a court that the discrimination against them was unfair. But if the complainants are black, or female or LGBTQ, and are thus part of a group that suffers systemic exclusion and oppression, it will be very difficult to prove that the discrimination against them was fair.
It must be clear from the above that Beloftebos is going to have a pretty difficult task to convince the court that the discrimination was fair.
The best that Beloftebos would be able to do is to argue that the discrimination has a legitimate and important purpose (another section 14(3) factor that the court must consider) namely to protect the right to freedom of religion of the owners of Beloftebos. The problem is that our courts have already rejected this argument in two different judgments.
In Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park the High Court (sitting as an Equality Court) held that the Dutch Reform church unfairly discriminated against a gay music teacher when it fired him because they discovered that he was gay. As the victim of the discrimination was not a spiritual leader in the church, “the impact on religious freedom of not granting the church an exemption from the anti-discriminatory legislation is minimal”. The impact on the music teacher was, however, severe.
The impact on the religious freedom of the owners of Beloftebos will be even more remote and inconsequential than the impact on the Dutch Reformed Church in the Strydom case. The owners of Beloftebos is not required to stop believing what they believe (regardless of how bizarre or seemingly bigoted the belief), is not required to stop propagating their beliefs, and is not prohibited from attending their church and from praying for us homosexual.
In the Strydom judgment the court confirmed PEPUDA requires that the right not to be discriminated against trump the right to freedom of religion unless the discrimination relates to the spiritual practices of the church, mosque or synagogue. This principle was reaffirmed in even more emphatic terms by the High Court in Isimangaliso Wetland Park v Sodwana Bay Guest Lodge. In this judgment the court rejected the outrageous claims of Sodwana Bay Guest Lodge owner Andre Slade that his guesthouse had a right to discriminate against black people because racial segregation was part of God’s law and that black people were classified as animals in the Bible.
Although the discrimination was based on race and not sexual orientation, the Isimangaliso judgment raised exactly the same legal question as the Beloftebos case, namely whether religious beliefs of a private business owner can trump the rights of individuals not to be discriminated against. Tellingly, the High Court ruled against the Sondwana Bay guest house and its unhinged owner, stating in unequivocal terms that freedom of religion cannot trump the right against equality in cases like this:
As much as the Constitution in terms of s 15(1) recognises the right to religious freedom, it does not grant the right to discriminate against other human beings in the name of such a belief system. Simply put, the right to religion and freedom of association cannot be used as tools to destroy the right to equality and human dignity. The respondent’s biblical beliefs that blacks are inferior to whites, less intellectual than whites and less human than whites are not only demeaning in the extreme but is without any substance. The conduct of the second respondent can never be tolerated in an equalitarian, democratic society based on human dignity.
From the above it must be clear that Beloftebos is going to lose their equality court case and that the court will force them to stop discriminating against LGBTQ people. And while those of us who oppose discrimination – gay or straight – will not ever again attend a wedding at Beloftebos, a court victory against Beloftebos will have far-reaching consequences for all institutions who continue to discriminate unfairly against people on the ground of sexual orientation.BACK TO TOP