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.
Last week the Commission-With-The-Long-Name (also known as the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Minorities) announced it will investigate the financial affairs of churches, mosques, synagogues and other houses of religion and spirituality. The investigation is reportedly aimed at formulating “sweeping regulations” of religious institutions to protect individuals against money-making charlatans. It is, however, unclear whether such regulation aimed at protecting believers will be constitutionally valid.
On a recent visit to Rome I dutifully visited the Vatican museums where I was struck by the opulence and wealth displayed there. (I was also struck by the display of the many priceless artworks of very young naked and half-naked men). Although it is estimated that in recent years the church has paid out more than $3 billion in compensation to victims in sexual abuse cases in the United States alone, the church remains a wealthy institution.
The Economist estimates that annual spending by the church and entities owned by the church was around $170 billion in 2010. The vast majority of this money is now spent on laudable causes. The Economist estimates that the church spends 57% of this on health-care networks, 28% on colleges, and only 6% on parish and diocesan day-to-day operations.
While the Catholic Church is one of the oldest and most powerful religious organisations on the planet, it is by far not the only religious institution that has amassed enormous wealth, at least partly by extracting money from ordinary believers made to believe that donating money to the religious institution will be well rewarded in this or in the “afterlife”.
From time to time the media criticises religious institutions that are not socially dominant or politically powerful (the various revelations about the Scientology Church and the recent ruckus about the pastor who convinced his congregants to eat snakes, come to mind). But more traditional and established religious institutions often get a free pass and are seldom subjected to criticism by either the media or politicians. (To be fair, after turning a blind eye for the previous 300 years the media has in recent years exposed many cases of child sexual abuse by Catholic Priests.)
But even non-mainstream religious institutions are almost never held to the same standards than non-religious institutions. When the creator of a pyramid scheme convinces people to hand over their money by making promises that cannot be kept, he or she may be prosecuted for fraud. However, at present it is unthinkable that any religious institution inducing believers to give it money by promising them a better life on earth or an eternal life in “heaven” will ever be criminally prosecuted in South Africa.
There is, of course, no evidence that a person will prosper on earth or gain entrance to “heaven” for giving money to a religious institution. While many people may believe this to be true (as is their right), there is no factual basis for this belief. Some would say that this belief in something that cannot be proven is at the heart of many peoples’ religious faith.
When a religious institution or leader makes such a promise in exchange for donations (without believing it to be true) this may amount to fraud. But because religious institutions still often get a free pass (and because it will be difficult to prove that a religious leader does not believe the promises he or she makes), it is at present unthinkable that a police officer will investigate allegations of fraud against a religious institution or that a prosecutor will prosecute an institution who makes fraudulent promises to religious believers.
The reason for this reluctance to look more closely at the financial affairs of religious institutions is clear: it would require the state to make an assessment about whether the claims or professed beliefs of a religious institution are true and whether those who make the claims believe them to be true.
Some argue that when we decide to regulate even the most harmful religious beliefs and practices because we do not ourselves believe these beliefs or practices to be valid, true or sincerely held, we strike at the heart of the right of religious freedom.
When the state tells a religious institution that eating snakes is harmful and cannot possibly be a valid religious practice, it in effect tells that institution that the practice is not a “real” religious practice or that the pastor who propagates it cannot truly be said to believe it is a valid religious practice.
If we truly believed that eating snakes would get us into heaven, we would never think of prohibiting a religious group from eating snakes. Similarly if we did not believe it ourselves, but thought a pastor truly believed that eating snakes would get you into heaven we would be cautious about limiting the right of that pastor to advocate the eating of snakes.
When we consider the limits of religious freedom, we are forced to make difficult choices about whether a specific belief or practice is harmful or not. But it will be far easier to agree that a belief or practice is harmful if we do not believe it to be true.
But who decides that this belief or practice is untrue and invalid? Who decides that only a charlatan would get his congregants to eat snakes or to donate pots of money to the church? Who decides that the homophobia of a preacher is not sincerely based on religious belief? Do we use the average atheist; the average believer of the religion being scrutinised; or the reasonable religious believer as a yardstick?
When a decision is made that a certain belief or practice is not religiously based or false, the state in effect claims for itself the power to limit the rights of believers to believe whatever they wish – no matter how bizarre or idiotic these beliefs and practices might seem to some of us or how harmful they may be to believers or to those targeted.
Confronted with his problem, our courts have not always been entirely consistent. In Prince v President of the Law Society of the Cape of Good Hope the majority had no problem in endorsing limitations imposed on the Rastafari religion, despite that this, in effect, turned most Rastafarians into potential criminals merely because of their faith. Mr Prince challenged the law that regulates the possession and use of cannabis because it failed to provide Rastafarians with an exemption to such laws.
All the judges accepted that Rastafari was a religion. After all the difference between a religion and a sect is often no more than the difference between a socially acceptable religion and a marginalised religion. In dealing with arguments made by the state that the use and possession of cannabis was not a central aspect of the Rastafari religion and hence not important to Rastafarians judge Ngcobo (for the minority) declined to judge the beliefs and practices of Rastafari and stated:
[A]s a general matter, the Court should not be concerned with questions whether, as a matter of religious doctrine, a particular practice is central to the religion. Religion is a matter of faith and belief. The beliefs that believers hold sacred and thus central to their religious faith may strike non-believers as bizarre, illogical or irrational. Human beings may freely believe in what they cannot prove. Yet, that their beliefs are bizarre, illogical or irrational to others or are incapable of scientific proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion. The believers should not be put to the proof of their beliefs or faith. For this reason, it is undesirable for courts to enter into the debate whether a particular practice is central to a religion unless there is a genuine dispute as to the centrality of the practice.
If we follow this view expressed by the minority in Prince the state would seldom be allowed to place limits on money driven religious practices at religious institutions. Nor would it easily be allowed to regulate the propagation of beliefs aimed at harming black people, women or gays and lesbians. If we allow religious institutions a wide discretion to practice their religion, we will have to allow them to discriminate against black people, women and gays and lesbians in conformity of their religious beliefs.
But should the state not protect individuals against charlatans in both mainstream and marginal religious institutions? Should it not stop religious groups from propagating hatred that may cause tremendous emotional and physical harm – especially if these beliefs merely mirror the widely held but damaging prejudices in society at large?
For example, if donations from congregants are used to finance the lavish lifestyles of church leaders, should the state not be permitted to regulate the religious institution to prevent gullible people from being exploited? If religious beliefs and practices fuel racism, sexism or homophobia, should the state not be allowed to limit the propagation of such beliefs and to prohibit discrimination in order to protect the human dignity of all?
These are not easy questions to answer. This is because beliefs are inherently contested and not easily evaluated by using the tools of rationality and logic. In South Africa, for example, the drafters of our Constitution decided to prohibit discrimination against gay men and lesbians. But many religious groups believe that gays and lesbians are not fully human and deserve to be discriminated against. These beliefs are neither logical nor rational, but they are often very passionately held.
Interestingly, the majority of judges in the Prince case found that it was permissible for the state to prohibit Rastafari from smoking cannabis. This means that the Constitutional Court has already endorsed the imposition of dramatic limits on the right to freedom of religion on the basis that this was needed to protect individuals in society against the perceived harm of cannabis use.
But Rastafarians do not believe the smoking of cannabis is harmful as it allows the user to get closer to God. The judges in effect rejected this belief. Because the majority of judges accepted that the smoking of cannabis was harmful, it chose not to endorse a basic religious practice of the Rastafarian faith. Instead, it said that the practice was harmful and could be prohibited.
Using the harm principle the court made a value judgment about a specific religious practice and endorsed legislation which fundamentally limits the ability of the specific religion from engaging in practices which the court found to be harmful.
If the majority of judges on the Constitutional Court had also believed that the smoking of cannabis was not truly harmful and brought one closer to God, it is surely unthinkable that they would have endorsed the criminal prohibition on the use of cannabis.
Does this mean courts will in future rely on the harm principle to sanction drastic limitations on the propagation of religious beliefs and on practices that harm believers themselves or that harm those branded as perverts or sinners?
If there is a degree of consensus that extorting money from believers to finance the lifestyle of religious leaders harm many believers, would it not be permissible to regulate the finances of religious institutions and to prohibit such institutions from making false promises to believers in order to extract money from them? If our Constitution promotes the achievement of a non-racist, non-sexist and homophobic free society, should religious institutions not be prohibited from spreading hatred based on race, sex and sexual orientation?
Until now the court has only sanctioned limitations on religious beliefs and on practices deemed harmful of small, relatively powerless, religious groups. Will the day arrive when our courts rely on the harm principle to sanction the protection of marginalised and vulnerable people from the harm caused by some of the religious beliefs and practices of the more powerful and socially dominant religions in our society?BACK TO TOP