PRESS RELEASE by Freedom of Religion South Africa (FOR SA)*
12 March 2019
For immediate distribution
Judgment against Dutch Reformed Church does not force all churches to marry gays
On Friday, 8th March, a full bench of the Pretoria High Court handed down judgment in the controversial case of Gaum v Dutch Reformed Church. The Court found to be unlawful – both from a procedural and a constitutional point of view – the 2016 decision by the DRC Synod, which had reversed its previous 2015 decision to remove the celibacy requirement for homosexual ministers and permit its ministers to solemnise same-sex civil unions (should they so choose).
While technically nothing prevents the DRC from correcting their process, considering the issue afresh and then taking a new decision in this regard, the Court’s findings on the substantive / constitutional aspects of this case may well have painted the DRC into a corner and make it very difficult for them to reach a different decision. This is because, in terms of the judgment, “allowing the LGBTIQA+ community to be members of the church, but excluding them from leadership positions and from a marriage ceremony” amounts to unfair discrimination and is unconstitutional.
Commenting on the judgment, FOR SA Executive Director Michael Swain, says “although the Court’s findings on the procedural aspects are not surprising, the findings on the constitutional aspects are very concerning from a religious freedom point of view and pose a severe threat to the institutional autonomy of churches and religious groupings.” In this regard, he points out that despite the fact that the High Court acknowledged the ‘doctrine of entanglement’ – which establishes that courts should as far as possible refrain from interfering in doctrinal disputes of a religious character – in this instance the Court did exactly that and thus radically departed from established South African and international law.
The major question is how does this judgment affects denominations, churches and faith groups outside the DRC? In this regard, FOR SA points out that while it is possible that the judgment may affect churches that (similar to the DRC) allow homosexual people to be members of the church but deny them the full benefits of membership, ultimately the judgment is case specific and therefore does not universally apply to all churches and denominations in South Africa. “The judgment does not go so far as to force all churches and religious groupings to marry same-sex couples, which the Commission for Gender Equality (CGE) unsuccessfully tried to argue,” says Michael Swain. “The judgment does however set a dangerous precedent. When the State starts telling society (including the church) how they should think and believe, we may find ourselves on a dangerous path towards totalitarianism”
The DRC has three weeks from the date of judgment to apply for leave to appeal the judgment to the Supreme Court of Appeal (SCA).
*Freedom of Religion South Africa (FOR SA) is one of the organisations in the Alliance Defending the Autonomy of Churches in South Africa (ADACSA) who appeared as a “Friend of the Court”, to defend and protect the autonomy of churches and religious groupings to set their own doctrine and to govern their internal affairs according to their interpretation of their religious texts.
For more information, contact:
Executive Director, FOR SA
Cell: 072 270 1217