Judgment insists church must accept gay marriages

JORDAN MOSHE

The court ruled that the exclusion of certain members by preventing them from enjoying the full and equal rights the church offers to others is unconstitutional.

This has potential ramifications for all religions, not least of all Judaism.

“The judgment provides an important recognition that religious groupings are bound by the Constitution, and have a duty not to discriminate against and to uphold the dignity of lesbian and gay people,” says David Bilchitz, professor of fundamental rights and constitutional law at the University of Johannesburg.

In 2015, the church decided to accept same-sex marriages, and scrapped a rule that gay ministers of the church had to be celibate. But it changed its mind in 2016, saying these relationships do not meet Christian guidelines.

Last year, Reverend Laurie Gaum, his father Dr Frits Gaum, and eight other members of the Dutch Reformed Church launched their application to have the 2016 decision set aside and declared unconstitutional.

Pierre de Vos, a professor of constitutional law at the University of Cape Town, writes in his blog, Constitutionally Speaking: “This part of the case presented the court with a choice between enforcing the right not to be discriminated against guaranteed in the Bill of Rights… on the one hand, and the right to freedom of religion… on the other. When should a court choose the right to equality, and when should it choose the right to freedom of religion?”

Although he points out that the court rejected this idea and said that there was “no balancing of rights required” in this case, he believes the court got this wrong.

However, he says only time will tell how courts will approach the issue in the future, balancing between the need to protect individuals, and the rights of religious institutions to engage in their practices.

Bilchitz maintains: “The court recognises that religious communities also contain minorities who must be treated decently. It takes a very strong position that religious freedom cannot provide a blank cheque to discriminate unfairly against individuals on grounds of sexual orientation.”

He emphasises that the refusal to allow an individual to become a minister – or a rabbi – because they are involved in a same-sex relationship is naked discrimination.

Although the decision formally only applies to the Dutch Reformed Church at present, Bilchitz says the principles affirmed in this decision also have important implications for all religious institutions, including Orthodox Judaism.

“If the Orthodox Jewish community wishes to conform with the values of dignity and equality underpinning the South African Constitution, it thus needs to consider its attitudes and behaviours towards gay and lesbian people.

“The South African courts have made a clear statement that the sacred is forced into the secular when there is prejudice to basic rights contained in the Bill of Rights.

“All South African Jews who believe in equality and human rights should demand that fairness and justice for lesbian and gay people be advanced by the Orthodox Jewish community.”

However, Stuart Woolman, a law professor from the University of the Witwatersrand, disagrees. He says that unless associations (such as Orthodox Judaism) that have rules on membership don’t appear to violate constitutional norms, or actually maintain a category of second-class members, those who find the discrimination abhorrent can seek justice elsewhere. “They can leave and set up an association more to their liking,” he says.

But this may not always be the case, he adds. “Such voluntary exit is not always possible. Under such circumstances, the state and the association have an obligation to enable people to find and create a community that meets their needs.

“Associations are where we secure our meaning in life. Do you want a state that, on the back of the basic law, can interfere in the daily affairs of fragile associations? I think not. If you can’t change the views of a community even when challenged, then your right response is to leave. Should you have difficulty with exit, then state and association have obligations to make you equal citizens elsewhere.”

When asked for his view, Chief Rabbi Dr Warren Goldstein said: “I am studying this lengthy and complex judgment to understand it properly.”