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Last week Parliament repealed section 6 of the Civil Union Act which previously allowed state marriage officers to refuse to marry same sex couples. The repeal finally brings to an end a particularly egregious form of unfair discrimination, although the “separate but equal” marriage regime that continues to discriminate against same-sex couples remain in place. Lobbyists from the non-profit company Freedom of Religion South Africa (FORSA) are not happy with the repeal. They wrongly argue that “forcing” civil servants to do their job in a non-discriminating manner constitutes an impermissible infringement on the civil servant’s religious rights.
Most people are not nearly as principled as they believe they are (or, perhaps, as they claim to believe they are).
You bemoan the toppling of statues because it “erases history” but quietly cheer on the toppling of a statue of Robert Mugabe or Muammar Gaddafi. You believe it is unbecoming of the Chief Justice to express blind support for Israel, but quietly cheer on another judge taking a pot shot at Donald Trump or Jacob Zuma. You are “pro-life” but you support the death penalty. You believe corruption is evil, but easily pay a bribe to a traffic cop to avoid arrest. Or you are a fervent proponent of religious freedom until some learners at your child’s school start a Satanism group.
This disconnect between a person’s stated principles, on the one hand, and his or her actual beliefs, on the other, often comes into sharp focus when individuals and groups insist that they have a right to discriminate against LGBTQ people. When one looks closer, one discovers that the religious groups do not claim they have a right to discriminate against anyone if this is required by their religious beliefs. They only claim to have a right to discriminate against LGBTQ people. As a result, the line between homophobic prejudice and sincerely held religious beliefs becomes blurred or may even be completely erased.
The arguments used by those who oppose the repeal of section 6 of the Civil Union Act illustrate how difficult it is to determine whether somebody is advancing a strongly held view based on principle, or whether that person is opportunistically invoking a principle that he or she does not fully endorse. Section 6 was controversial because it permitted state marriage officers to refuse to do their job if – for whatever reason – they did not want to solemnise same sex marriages. To understand its full impact, imagine a similar provision allowing civil servants not to solemnise interracial marriages or marriages of people of a faith different to that of the civil servant.
(It is important to note that the Civil Union Act accommodates religious freedom by permitted religious marriage officers to continue discriminating against same sex couples.)
Take the “non-profit” company called Freedom of Religion South Africa (FORSA) as an example – FORSA should not be confused with FORZA Italia, the right wing Italian political party whose former leader Sylvio Berlusconi became famous for the “bunga bunga” orgies he organised. As Parliament was considering the repeal of section 6, FORSA encouraged members of the public to send a pro forma letter to Parliament to object that the repeal was “unconstitutional”. This was so, the letter claims, because:
The Bill violates the constitutional rights (not to be unfairly discriminated against, dignity and religious freedom) of those State-employed marriage officers who, because of their sincere religious convictions and beliefs, do not see their way open to solemnising same-sex marriages, but who will now be forced to do so – or suffer the consequences.
Somebody who has not thought this issue through, or who wishes to cloak their homophobic prejudice in religious garb, might well believe that this is a reasonable claim. After all, the Constitution requires “reasonable accommodation” of religious beliefs and practices. The recent case of the SANDF major who was at first refused to wear a headscarf to work (as her religious practice required), is a perfect example of a case requiring reasonable accommodation of religious beliefs and practices. In this case the SANDF could accommodate the major’s religious practice, with little negative impact on anyone and definitely without discriminating against anyone.
The situation is radically different when individual civil servants invoke their religious or other beliefs to justify discriminating against others. What makes this claim so callous and harmful, is that it is based on the assumption that some citizens only enjoy equal dignity and respect in the eyes of the state to the extent that this accords with the personal (religious or other) beliefs of individual state employees. It makes the enjoyment of the right to equality dependent on the personal religious or other opinions of individual civil servants. It turns the question of whether discrimination is a bad thing and whether it should be prohibited, into a matter of (religious) opinion.
If the argument of a company like FORSA is accepted, it will mean that some citizens will lose their right to full and equal citizenship, based on nothing more than the personal opinion or belief of specific civil servants. It sends a signal that the right to be treated with dignity and respect is a mere matter of belief and opinion.
To illustrate how absurd and dangerous it would be to accept FORSA’s argument that civil servants should have a right to refuse to serve some citizens because it would be against their religious beliefs to do so, let me turn to an example. This example also illustrates that FORSA does not in fact support the principle that they claim they support. Theirs is not a principled objection based on the right to freedom of religion, it is an objection based on their failure to accord LGBTQ people equal dignity and respect.
Let me take you to the Home Affairs office in Barracks Street in Cape Town. Here we are, standing at the entrance, two men masked against Covid-19 are trying to sell us bic pens. I point at the door, keeping the two meter distance between us, and warn you that civil servants who work here have (in line with the FORSA principle) all been given the right to refuse to serve individuals when they do not see their way open to do so – as long as this refusal is based on their sincere religious convictions and beliefs. I also remind you that some employees at the Barracks Street Home Affairs Office belong to a religion which forbids any social contact between men and women – unless they are married to each other. Others employees are members of the Afrikaans Protestantse Kerk (APK), a church that believes the Bible not only condones, but actively prescribes, racial segregation.
Let me take you inside. Look! To the left, just after the machine dispensing queue numbers, you find window “A”, with a makeshift sign stuck to the window, declaring: “Whites Only”. I point at the sign and shake my head. This looks like apartheid South Africa, I say, but the civil servant working at that counter is a member of the APK so some say this is just a matter of freedom of religion.
We move on to counter “B’ where another makeshift sign states: “Men Only”. Again I roll my eyes and point out that the civil servant working there believes it is his religious duty not to interact with “impure” women. Gender discrimination, or freedom of religion? At counter “C” a makeshift sign says in block letters (no rainbow colours in sight): “Heterosexuals Only”. By now we both smile. Yes, obviously this civil servant is a big fan of FORSA and claims that she is just enjoying her right to freedom of religion.
As we leave the building you turn to me and ask: “But why would anyone embrace a religion which requires you to discriminate against others?” I have no answer.
There are few people who would argue that what we saw inside the Home Affairs Office was acceptable. We will all recognise what we saw as prohibited discrimination. We will not be convinced by the argument – one which FORSA made with reference to the repeal of section 6 of the Civil Union Act – that there is no discrimination here because people were not prohibited from being served, but were just prohibited from being served at specific windows. We will not be convinced because “Whites Only”, “Men Only” and “Heterosexuals Only” signs signal – in a profound and disturbing way – that the excluded groups are not considered fully human, are somehow less worthy of concern and respect than Black people, than women, than LGBTQ people..
The example above illustrates how shocking an alien to any concept of human dignity and equality the idea advanced by FORSA is. A consistent endorsement of this view would legitimise all kinds of discrimination. It would contract discrimination law out to the opinions and beliefs of individual citizens. Individuals would suddenly be able to discriminate against anyone as long as they claim that the discrimination is based on their sincerely held religious beliefs.
It is for this exact same reason that the High Court rejected an argument by Sodwana Bay guest house owner Andre Slade that his guesthouse had a right to discriminate against black people because he believed racial segregation was part of God’s law and that black people were classified as animals in the Bible. (This is a much cruder version of the FORSA position on how some religious people believe they need to treat LGBTQ people.)
In that case (Isimangaliso Wetland Park v Sodwana Bay Guest Lodge) the High Court the right to religious freedom, “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 Sodwana Bay judgment sets out the current legal position on the matter in South Africa. It is a wise decision as it recognises that the right to be protected against discrimination would be destroyed if the court allowed individuals to discriminate based on their personal religious beliefs. To be fair to FORSA, its position is probably not a principled one and it therefore probably does not wish to destroy the right to be protected against discrimination for everyone. It only wishes to destroy the right to be protected against discrimination for LGBTQ people.BACK TO TOP