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.
The Constitutional Court this week declined to hear a case of unfair discrimination brought by Ecclesia De Lange against the Methodist Church. De Lange challenged the Church after it fired her as a Minister when she told her congregation in 2009 that she intended marrying her same-sex partner. Although Church officials knew that she and her partner had been living together in the Church manse at Grassy Park since 2004, the Church took no action against her as long as she remained “discreet” about her sexuality. In other words, the Church had no problem with one of its Ministers being dishonest; but it did have a problem with one of its Ministers being honest about marrying a same-sex partner.
The Methodist Church appears to have a confusing – what appears to me a completely irrational – view of same-sex love. As the Constitutional Court pointed out in De Lange v Presiding Bishop of the Methodist Church of Southern Africa, the Church on the one hand “tolerates homosexual relationships”. On the other hand, the Church recognises “a marriage only between one man and one woman” and thus “requires its ministers not to enter into same-sex marriages”.
In effect this means that the Methodist Church embraces and welcomes same-sex couples into the Church (despite the fact that such couples, presumably, express their love for one another partly by having sex with one another out of wedlock). However, the Church prohibits same-sex couples from being honest and open about their sexuality, from entering into holy matrimony (at least if one of the members of the couple is a Church Minister) and telling the world about their love for one another.
The Church is very much in favour of marriage. Except when it is not. The distinction being, as far as I can tell, that while the Church believes “homosexuals” should be “tolerated”, it also believes that we are dirty, soiled, and unclean (especially when we are honest about who we love) and that we should be kept away from the institution of marriage for fear of “defiling” or “corrupting” this supposedly venerable institution.
After being fired as a Minister, Ecclesia de Lange approached the Constitutional Court asking for leave to appeal against a decision of the Supreme Court of Appeal (SCA). That decision concerned her suspension and discontinuation as a minister of the Methodist Church of Southern Africa (Church or respondents). The Church suspended and subsequently discontinued her role as an ordained minister after she had publicly announced her intention to marry her same-sex partner.
The Constitutional Court (in a judgment authored by Moseneke DCJ) held that it was not in the interest of justice to hear the appeal. For several technical reasons the Constitutional Court found that there was no reasonable prospect that it would reverse the decision of the SCA.
The Court found, amongst other reasons, that the doctrine of constitutional subsidiarity requires that an unfair discrimination claim must be heard by the Equality Court first and not by an ordinary High Court. The failure of De Lange to approach the Equality Court was thus fatal to her case. It also found that De Lange had failed to file a notice in terms of rule 16A of the Uniform Rules of Court, which required her to give notice to the Registrar that she intended raising a constitutional issue in the case.
Moreover, for various reasons, both the High Court and the SCA had declined to consider the pertinent substantive issue – whether the Church was permitted to discriminate against De Lange in the manner it did. This meant that the Constitutional Court would, in effect, have had to decide the case as a court of both first and last instance. This, according to the Constitutional Court, was undesirable, especially:
in a dispute of considerable complexity and vast public repercussions arising from competing constitutional claims. This is not a run-of-the-mill claim for equal worth and regard in which this Court may, without more, dispense with the views of the High Court and the Supreme Court of Appeal. If and when the unfair discrimination claim has been properly ripened, it will require all the judicial, if not Solomonic, wisdom we Judges can muster right through our court system.
Instead, the Constitutional Court suggested that De Lange should rather have availed herself of the process of compulsory arbitration between her and the Church. The Constitutional Court found that the arbitrator (a member of the Methodist Church appointed by the Church) would have been allowed to decide on whether the disciplinary committee of the Church had the power to discontinue, and properly discontinued, De Lange’s ministry. For this reason, the Court seemingly passed the buck back to the arbitrator in order not to have to decide this case of “considerable complexity” requiring “Solomonic wisdom”, stating that:
arbitration would be the ideal forum for Ms De Lange and the Church to see where the balance between dogma and tolerance should be struck. It is not only appropriate but it would be the best solution in the present circumstances. If the nature of the rule proscribing same-sex unions of ministers of the Church is vague and uncertain, domestic arbitration would again be the appropriate forum to provide clarity and indeed the reasonable accommodation that Ms De Lange urged upon this Court to find and impose on the Church.
It is far from clear to me that arbitration will lead to a happy ending for Ecclesia De Lange. Given the fact that the arbitrator is not going to be independent and impartial but in effect a representative of the Church, it is unlikely that such arbitrator will find against the Church.
In any case, at this point the Church has, even after extensive reflection and prayer, failed to come to a clear understanding of whether its God requires it to discriminate against other consenting adults for loving each other. Unless the Church changes its stance and moves from its position of reluctant “tolerance” of “homosexuals”, to a position of respect for the equal dignity of anyone regardless of their sexual orientation, there is no chance of any “reasonable accommodation” of Ms De Lange’s right not to be discriminated against.
But in theory at least the avenue of arbitration remains open to her if she wishes to pursue it.
In a concurring judgment Van der Westhuizen J provided a more plausible (and in my opinion honest) explanation for the Court’s reluctance to tell the Church to stop discriminating against fellow human beings for loving one another. He noted that the case raises a difficult and complex question, namely:
How far do the Constitution and its interpretation and enforcement by courts reach into our private and social lives? Is there, somewhere in our churches, temples, mosques and synagogues – or for that matter our kitchens and bedrooms – a ‘constitution-free’ zone?
Answering that there is no “constitutional free” zone in South Africa and that the Constitution has a role to play in every sphere of society, Van der Westhuizen nevertheless cautioned that it was not advisable for “a court to intrude into private spaces” with a bluntness that was not warranted. Rights compete with one another and sometimes one right would have to yield to another. This did not mean that the rights of religious believers would always or even often trump the rights of others.
Nevertheless, argued Van der Westhuizen, “courts are not necessarily the best instruments to balance competing rights and values in intimate spheres where emotions and convictions determine choices and association”.
I wonder whether the honourable justice would have made the same point if the rights and values to be balanced in the case were those of a religious institution who wished to discriminate against black people, on the one hand, and the right of black South Africans, on the other. This is because our courts have never shied away from protecting individuals against racial discrimination by private institutions.
Be that as it may, Justice Van der Westhuizen suggested that when we have to decide whether the right to privacy, freedom of association or religion should wield to the right not to be discriminated against, it will depend to some degree on how close to “the core of our private inner sanctum” the belief or practice is that demands the discrimination. Perhaps, he speculated, the Constitution itself created a “constitutionally permitted free space”, which was “quite different from contending that certain areas in a constitutional democracy are beyond the reach of the Constitution, or ‘constitution-free’.”
If you agree with the view expressed by Van der Westhuizen it would mean that the rights of the Church would trump the rights of, say, gay men and lesbians not to be discriminated against by the Church only when the Church could show that a specific belief (for example, a belief that God views some human beings as not fully human and not entitled to equal concern and respect; in other words a belief that God demands of the Church to discriminate against fellow human beings) was absolutely central to its religious views and mission. But if the religious institution was still praying about whether God required it to treat others as sub-human (as the Methodists Church seemingly is), it would be far more difficult for the Church to convince a court that it was entitled to discriminate against others – be it on the basis of race, sex or sexual orientation.
And for me, this is exactly the problem with the position taken by both the Church and the judges in the High Court, SCA and Constitutional Court. The Methodist Church “tolerates homosexuals” and even accepts same-sex relationships (as long as such relationships are not solemnised by marriage), which means it is not at the core of the Church’s beliefs that two consenting adults of the same sex are sub-human and thus deserving of vilification and discrimination.
The Methodist Church – much, so it seems to me at least, like the judges of the Constitutional Court – are trying to have their bread buttered on both sides. On the one hand, the Church wants to demonstrate that it is tolerant, loving and accepting of individuals who are emotionally and sexually attracted to members of the same sex. On the other hand, the Church fears that a majority of believers (who donate money to the Church and fill its benches every Sunday) are far from tolerant, loving and accepting and would leave the Church if it accepts gay men and lesbians as fully human beings entitled to equal concern and respect.
To square this circle, the Church prohibits Ministers in the Church from entering into same-sex marriages, not to enforce a belief that is central to the religious doctrine of the Church, but instead to protect the Church from the political fall-out that may be caused by the bigotry of its members.
It is exactly where the discrimination seems to be animated more by the pragmatic need to accommodate the prejudices of its congregants, that the Church could not possibly argue that it is its right to do so because it finds itself in a “constitutionally permitted free space”.BACK TO TOP