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.
Where does freedom of religion end and respect for the constitutional values of equality and dignity begin? I ask because I see some religious groups have expressed disquiet at the recent ruling of the Pretoria High Court that the NG Kerk in Moreleta Park unfairly discriminated against a gay music teacher when it fired him for being in a long term committed relationship with another man.
Judge Dion Basson last Thursday ordered the congregation to pay the teacher damages of R87 000 and to apologise unconditionally for its conduct. He said Strydom’s contract was terminated on the basis that he was involved in a homosexual relationship. The church had failed to prove that Strydom’s job entailed religious instruction, or that the discrimination against him had been fair or justified, the judge found.
According to the Mail & Guardian some religious groups are up in arms, arguing that their freedom of religions is being trampled upon.
Apostolic Faith Mission church president Dr Isak Burger said the ruling is a “serious threat” to religious freedom in South Africa. It subjects the biblically based beliefs and values of the majority of Christians to “pure humanism and an extremely secular and liberal Constitution. It places the Constitution above the Bible and man above God.”
It seems to me this view completely misreads the nature of freedom of religion in a constitutional state, advocating for the right of religious groups to trump the rights of anyone else in all circumstances. It is not based on the notion of religious freedom at all, but on the endorsement of religious tyranny.
In the same-sex marriage judgment Justice Albie Sachs dealt extensively with this issue. In that case some religious groups argued that the recognition of same-sex marriage would infringe on their freedom of religion because marriage is seen by many religious groups as being uniquely between one man and one woman. By extending marriage rights to same-sex couples the state would be trampling on this sacred institution and would thus be forcing religious groups to abandon their deeply and sincerely held belief s about the nature of marriage.
Sachs countered by stating that in a constitutional state there was a need for an accommodation between the sacred and the secular. A balance had to be struck between the need to respect religious beliefs and practices on the one hand, and the protection of the dignity of all on the other. If a state forced a religious institution to adopt certain views in the practicing of their religion, it would trample on their freedom of religion. But this did not mean that the views of some religious groups could justify unfair discrimination against gay men and lesbians in the public arena.
The same principle applies in this case. It would therefore infringe on the freedom of a religion on churches, mosques or synagogues to force them to employ a gay dominee, imam, rabbi or priest or to force the Catholic Church to ordain woman priests. The same would be true for forcing them to employ someone giving religious instruction at that institution.
But this does not mean that such groups can be exempted from the general employment rules or the provisions of the Equality Act or the Constitution altogether.
Where a religious group employs an individual in a non-religious capacity, for example, the Constitution demands that they do so without discriminating against anyone. A church that employs a secretary or a gardener cannot prohibit a gay man or a black woman from doing these jobs because that church happens to espouse homophobic or racist views.
This is because these jobs are not directly linked to the religious nature of the institution. A person employed as a typist, a gardener (or a music teacher for that matter) does not give religious instruction and forcing a church to employ such a person in no way forces the church to espouse views or practices that its religion frowns upon or even abhor. The religious freedom of the church is therefore not affected while the rights of all citizens remain protected.
This seems like a sensible compromise also adopted by the Pretoria High Court. To have held otherwise would have in effect exempted religious institutions from the basic rules set out in the Constitution that is aimed at protecting the equality and dignity of all people living in South Africa. This would have created a situation in which religious institutions are in effect above the law and would have allowed them to engage in the most shocking and inhuman kinds of discrimination against anyone with which they have any dealings.
So this judgment manages to balance the interest of the state against the interest of religious groups in a sensible and pragmatic fashion, refusing to sanction religious tyranny. After all, not all religious groups are homophobic, sexist or racist, while many South Africans are not religious at all. In a country where we are building a culture of respect for diversity and difference churches can therefore not get a free pass. All they can expect is that they will not be forced to adopt beliefs they do not like or that their Bible or Koran tells them are sinful.
This is, after all, not Iran or Germany. We respect different belief systems and do not give preference to the bigoted and homophobic views held by some.BACK TO TOP