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.
“Prejudice,” warned former Chief Justice Sandile Ngcobo in the judgment of Hoffmann v South African Airways, “can never justify unfair discrimination”. This means that a church can never justify discrimination against a gay or lesbian minister, pastor or priest, because it wanted to protect itself against the homophobic prejudices of its congregants. But this seems to be exactly what South Africa’s Methodist Church did when it fired Reverend Ecclesia de Lange after she announced to her congregation that she was going to marry her same sex life partner.
When the reverend Ecclesia de Lange announced to the congregation of the Brackenfell and Windsor Park Methodist congregations (where she was serving as its minister) that she was going to marry her girlfriend (with whom she was already sharing the official church manse), she was under the impression that the move would be welcomed by the church – in the same manner that it was generally welcomed by her congregants.
Instead of the Methodist Church leadership welcoming her move to stop living together without being married, the leadership suspended reverend De Lange and charged her with breach of the church’s policies when she announced her pending same sex union to the congregation.
Interestingly, she was not charged because she was living with her same-sex partner in the manse. Neither was she charged for entering a same sex marriage. Instead she was charged with announcing her intention to enter into such a marriage on the basis that this pre-empted the outcome of a continuing debate inside the Methodist Church about whether the church should endorse equal marriage rights for all.
In other words, the church was upset by the fact that she wanted to formalise her same sex relationship and that she was honest about this relationship with the members of her congregation. If she had been dishonest and had not announced her impending marriage to the congregation, she might never have been disciplined. This suggests that the Methodist Church was deeply hypocritical and essentially punished its ministers for being honest about their same sex relationships. And there I was, thinking that churches usually insisted on honesty and truth, not on deceit and subterfuge; that they insisted that people who love each other get married rather than live together without getting married.
The reverend De Lange was found guilty and it was recommended that she remained suspended until such time as the church made a binding decision about its position on ministers in same sex unions. On appeal, the original guilty verdict was confirmed and her ministry of the Methodist Church of Southern Africa was discontinued. In other words, she was fired because she was honest enough to announce her wedding to her congregation.
Rule 11.3 of the Methodist Church’s Disciplinary Code states that a minister can be disciplined because of issues relating to his or her character, doctrinal beliefs, fitness for the work of the ministry, or the observance of the Laws and Discipline of the Church. The charges against the Reverend De Lange related to her alleged failure to “observe and implement the Laws and Discipline and all other policies, other policies and decisions, practices and usages of the Church”.
Here is the catch: she was found guilty of breaching the church’s policy and more specifically the provisions of Year Book 2008 2.5.1(vi). The 2008 Year Book paragraph 2.5.1 (vi), captures the official version of the Methodist Church regarding same sex marriage at the time when reverend De Lange was fired:
Conference recognises that any decision and subsequent action on the issue of civil unions between same sex partners must await the outcome of the on-going process of engagement as specified by Conference 2005 and, in the interim, expects Methodist Ministers to continue to offer pastoral care to homosexual individuals.
In other words, she was found guilty of breaching a rule which stated that the church explicitly declined to take a position regarding same sex marriage. It is seldom that somebody is dismissed for breaching a non-existent rule – but this seems to be just such a case. This week she challenged the unfair disciplinary process and the unfair discrimination by the church against her in the Cape High Court. (Full disclosure: my sister, Anna-Marie de Vos, SC, argued her case and I informally advised the legal team.)
One aspect of the case raised before the High Court, was the argument that by firing Ecclesia de Lange because she had announced her marriage to the congregation, the Methodist Church had unfairly discriminated against her in contravention of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Section 13 of the PEPUDA requires the complainant to make out a prima facie case of discrimination. Once she has done so, the onus shifts to the respondent who must prove that the discrimination was not unfair.
In this instance, the Methodist Church itself had admitted that it had discriminated against Ecclesia de Lange. Its defence was, in effect, that it was justified to do so (and that the discrimination as therefore fair) because the church was merely enforcing the laws and discipline of the church.
Section 14 of PEPUDA lists a whole host of factors that might be relevant when a court had to consider whether the church had disposed of its onus. Two of these factors are of particular relevance in this case. First, the church could show “the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned”. Second, the church could prove that the discrimination had a legitimate purpose and that it actually achieved its purpose. If the church could prove the latter the court would weigh these considerations up against the seriousness of the infringement of the human dignity of the person against whom the church discriminated to decide whether the discrimination as fair or unfair.
Given the guarantee of freedom of religion contained in the Constitution, it could be argued that where a religious denomination had formally adopted a view, based on its own “definitive” interpretation of scripture, that it was a God-mandated requirement for a church to deny some people their human dignity and to discriminate against them because of one of more of their personal attributes or characteristics like race, sex, gender or sexual orientation, this would be found to justify the discrimination.
Such a church could then say that it was an inherent requirement of the job of a minister of that church to be white, to be a man, to be unmarried, to be married to a member of the opposite sex or to lie about being married to a member of the same sex. The purpose of the resulting discrimination could then be said to be the enforcement of the pre-announced, clearly defined, policies of the church, based not on the personal prejudices of the bishops or other church leaders, nor on the prejudices of the members of the church, but on the specific interpretation of the scripture as adopted by the official church bodies.
This would mean that where the highest decision making body of a church had decided (as the Dutch Reformed Church did many years ago) that Apartheid was biblically founded and then invoked specific verses from the Bible to justify this view, that church would (arguably – but I am not sure about this point) be able to convince a court that its requirement that only white men could become dominees in that church constituted fair (instead of unfair) discrimination.
Similarly, a church that had invoked specific Bible verses and had decided that gay men and lesbians deserved to be discriminated against and to have their human dignity affronted, may (arguably) be able to convince a court that its discrimination against gays and lesbians who wished to join the church or wished to get married was fair and therefore legally permissible.
But at the time of Ecclesia’s dismissal the Methodist Church had explicitly decided not to decide whether the scripture (as interpreted by its highest decision making body) would approve of same sex marriage. It would therefore be impossible for it to prove that its discrimination against Ecclesia de Lange was fair and hence legally justified. It could not be said to be an inherent requirement of the job that ministers in the Methodist Church involved in same sex relationships were required to keep such relationships secret. Nor was it an inherent requirement of the job that Ministers of that Church were required to lie about their marital status. The church had not adopted an official policy, backed up by reference to the relevant scriptures, so it had not way of proving that it was advancing the religious doctrine of the church when it discriminated against Ecclesia.
How could it be intrinsic to the activity of being a minister in the Methodist Church not to be married to your same sex life partner, if the church itself had not made any decision about its position on same-sex marriage? It cannot be intrinsic to the activity of being a minister always to act in a way that conforms to the expectations – not explicitly based on religious scripture – of some of the members (or even some of the leadership) of the church. To hold otherwise would hold a minister hostage to the prejudices, fears, fleeting obsessions and predilections of individual leaders of the church that were unrelated to the official interpretation by the church of those scriptures it based its teaching on – even when this will have the effect of discriminating against the minister based on one or more protected grounds.BACK TO TOP