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 South African Human Rights Commission and the Commission for Gender Equality have skirted the issue of whether a version of the Koran that allows men “lightly” to beat their wives propagates violence against women. But the news does not come as a surprise, as our courts have long struggled with the question of how to deal with issues of freedom of religion and conscience.
According to one interpretation of the Koran, the relevant passage reads: “As to those women on whose part you fear disloyalty and ill conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly)…” The question, I would think, is whether this passage should be banned because it encourages domestic violence against women and whether those who promote it should be charged with incitement to violence.
Quite frankly, it is not entirely clear to me how the Constitutional Court would deal with a request to expunge or suppress this sentence from the Koran or to charge those who disseminate it with incitement.
There are of course many religious beliefs and practices, and many passages in various religious texts that will appear inexplicable, demonstrably false, deeply hurtful, offensive or harmful to any reasonably sane person not blinded by their own cultural and religious commitments. Some passages in the Bible and the Koran may be interpreted as containing hate speech against women and gay men and lesbians in contravention of the Equality Act, while other passages may be interpreted as inciting violence, either directly or indirectly, against women and gay men and lesbians.
For example, how should a court react to Leviticus 18:22 of the Christian Bible which states that homosexuality is an abomination which cannot be condoned under any circumstances? What about Leviticus 25:44, which states that one may possess slaves, both male and female, provided they are purchased from neighbouring nations? What about Exodus 35:2, which states that people working on Sundays should be put to death? What about Rastafarians who insist that partaking in the holy herb of cannabis brought them closer to God? And should a court not ban the widespread practice among Muslims and Jews to cut off a part of a baby boy’s penis shortly after birth?
Section 15(1) of the Constitution guarantees for everyone the right to “freedom of conscience, religion, thought, belief and opinion”. This means one has a right to believe what one wants to believe (no matter how bizarre, uninformed or harmful to others); to bring the good news of one’s beliefs to those around you by shouting it out from the rooftops; and by practicing the tenets of one’s religious beliefs.
However, several laws limit this seemingly expansive right to freedom of religion and conscience. For example, the South African Schools Act prohibits corporal punishment in schools – despite the fact that the Christian Bible says that if one spares the rod one spoils the child. The Drugs Act prohibits the possession and use of cannabis – even by practicing Rastafarians who believe they need to smoke dagga. The Domestic Violence Act prohibits domestic violence against women and children – despite the fact that some interpretations of the Koran permit light beatings of women by their husbands. The Equality Act prohibits anyone from discriminating against anyone on the basis of race, sex, gender, sexual orientation or marital status – despite the prohibition on the ordination of female priests by the Catholic Church and despite the widespread religiously sanctioned discrimination against women and gay men and lesbians.
When a court is called upon to make a decision on whether such limitations are reasonable and justifiable in terms of the limitation clause provided in section 36 of the Bill of Rights, it will have to balance the interests of the state and the community as a whole (including the interests of women and gay men and lesbians), on the one hand, against the interests of the religious community whose beliefs, teachings and practices are being limited, on the other. The more serious the harm being done by the religious beliefs, teachings or practices, in the court’s view, the quicker it will be to endorse the limitation of the religious freedom of those who engage in the harmful religious practices. The more important, believable or true the obnoxious beliefs, teachings or practices are, in the court’s view, the less likely it would be to endorse limitations on those beliefs, teachings or practices.
Courts have said that they will apply the principle of reasonable accommodation when balancing competing interests of the state and of religious communities. But the politics of religion invariably plays a role in making decisions about where to draw the line between accommodating obnoxious or harmful religious beliefs or practices, on the one hand, and endorsing a ban on those beliefs or practices, on the other.
The more powerful and influential a religion, the less likely it is that a court would dare to endorse fundamental restrictions on the major tenets of the religious beliefs, teachings and practices of its adherents. And if the majority of South Africans view the beliefs, teachings and practices of a small and unorganised religion as bizarre, fundamentally false and even dangerous, it is more likely that restrictions on such beliefs and practices would be endorsed by the courts.
Even if the religious beliefs, teachings, superstitions and practices of the majority of believers are sometimes also weird, bigoted and even dangerous, the widespread acceptance of these beliefs and practices by the majority of South Africans would make it difficult for a court to endorse the curtailment of these beliefs and practices – except in the most extreme cases.
As Justice Albie Sachs pointed out in a dissenting decision in Prince v President of the Law Society of the Cape of Good Hope, in which the majority endorsed the complete ban on the possession and use of cannabis, even though it infringed on the right to freedom of religion of Rastafarians:
One cannot imagine in South Africa today any legislative authority passing or sustaining laws which suppressed central beliefs and practices of Christianity, Islam, Hinduism and Judaism. These are well-organised religions, capable of mounting strong lobbies and in a position materially to affect the outcome of elections. They are not driven to seek constitutional protection from the courts. A threat to the freedom of one would be seen as a threat to the freedom of all. The Rastafari, on the other hand, are not only in conflict with the public authorities, they are isolated from mainstream religious groups… Indeed, the Rastafari might receive more tolerance from non-believers to whom all religions are equally strange, than from members of well-established confessions, who might have difficulty in taking the Rastafari belief system seriously as a religion at all.
I would guess it is exactly the politics of religion which caused the Human Rights Commission and the Gender Commission to shy away from a finding that the specific interpretation of the Koran was in conflict with the Domestic Violence Act. If they had endorsed the complaint, large sections of the Christian Bible – as well as practices such as the ban on the ordination of women priests and the widespread religiously mandated discrimination against gay men and lesbians – would have been open to challenge on the basis that it contravenes the Equality Act.
This raises an important question which has recently enjoyed attention in legal journals: to what extent should our law accommodate the bigoted, hurtful or even physically threatening beliefs, teachings and practices of religious groups? Given our Constitution’s commitment to non-discrimination and the protection of human dignity, should the harmful and bigoted beliefs, teachings and practices of some religious groups not yield before the constitutional imperative to protect the dignity of those being humiliated and whose bodily integrity and lives are being endangered by these beliefs, teaching and practices?
As much as I would answer yes to this question, I suspect that our courts would lean in the opposite direction and would accommodate most forms of discrimination, the infringement of human dignity and the promotion of bigotry and sexism – as long as these beliefs and practices are endorsed by one of the powerful and influential religions in our society.
PS: I could have added another consideration our courts would take into account to determine whether the religious belief or practice would be accommodated or not: The further removed the practice or activity from the core business of the religious group, the more likely that our courts would sanction the limitation on that practice or activity. So, while courts in South Africa will almost certainly find that the practice of the Catholic Church to ordain only male priest should be accommodated, despite the ban on unfair discrimination against women, they would be far less likely to do so if the Catholic Church refused to employ a female administrator or organist. Similarly, in the recent case of a fast food owner who prohibited his employees from bringing non-halaal food on the work premises, the court found this practice should not be accommodated and that the employee could bring his non-halaal food from home.