Quote of the week

It is clear that no legitimate objective is advanced by excluding domestic workers from COIDA.  If anything, their exclusion has a significant stigmatising effect which entrenches patterns of disadvantage based on race, sex and gender…. In considering those who are most vulnerable or most in need, a court should take cognisance of those who fall at the intersection of compounded vulnerabilities due to intersecting oppression based on race, sex, gender, class and other grounds.  To allow this form of state-sanctioned inequity goes against the values of our newly constituted society namely human dignity, the achievement of equality and ubuntu.  To exclude this category of individuals from the social security scheme established by COIDA is manifestly unreasonable.

Victor AJ
Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)
29 May 2007

Churches cannot be forced to marry same sex couples

“The problem with freedom of religion,” said a friend the other day, “is that you are forced to allow churches to discriminate against women and gays. Can’t we just force these bastards to accept gay clergy and to marry gay couples?”

I was reminded of this outburst when I read in the Cape Times reports today (subscription required) that over 500 prominent Christians – including academics, theologians, members of parliament, artists and activists – have signed a letter to the General Synod of the Dutch Reformed Church (DRC) asking the church to condemn discrimination against gays and for the full acceptance of homosexuals in the church “as members and human beings”.

Could we not take the Dutch Reformed Church (or the Catholic Church for that matter) to the Constitutional Court and force them to stop discriminating against homosexuals (or women)?

The simple answer is that the constitutional guarantee of freedom of religion and conscience allows religious denominations wide discretion to decide for themselves what they want to believe and how they want to arrange their religious affairs – especially if the religion is an established one with a sizable support in the community.

If the Afrikaner Prostetantse Kerk wants to believe that it is sinful for white and black people to sit in the same church, they have a right to believe that and to practice that belief. The same goes for churches who want to believe homosexuals are perverts whom God will smite one day.

The Constitutional Court is extremely reluctant to allow interference in the internal workings of a religious group. That is why the court would not have any problem with legislation that would allow a church to stop one of its Ministers from conducting a same-sex marriage, for example.

The argument is that if you do not like the teachings of the church, you can leave and join another church or, even better, start your own church. I imagine one could have lots of fun devising the teachings for such a church: mine would go heavy on Holy Communion (lots of wine) and would not be too keen on the Ten Commandments or reading a Bible (too boring). But this would, of course, be of little use to the many people whose relationship with a specific religious denomination is deeply symbolic and profound, yet who does not agree with all the teachings of that religious group.

As Justice Albie Sachs said in the same-sex marriage judgment, the Constitution requires an accommodation in public life of the sacred and the secular. This accommodation can only be achieved with a “live and let live” approach. We cannot “force the bastards” to marry same sex couples or even to ordain women as Ministers. And they, in their turn, can’t force us to come to church or to believe in transubstantiation.

What we can do is to argue with the religious groups about their often hurtful and/or hateful teachings which some of their representatives may take for granted. This is why the initiative of the 500 Christians is, in my opinion, a good thing: if the Dutch Reformed Church had any sense of history and sense of shame, the statement would be deeply embarrassing – which is at least a start.

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