Quote of the week

An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.

Plasket AJ
Victoria Park Ratepayers' Association v Greyvenouw CC and others (511/03) [2003] ZAECHC 19 (11 April 2003)
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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