by Advocate Nadene Badenhorst
Legal Counsel, FOR SA
In a great victory for religious freedom and the autonomy of the Church to govern her own affairs, the Constitutional Court on Tuesday shut the door on lesbian minister Ecclesia de Lange’s unfair discrimination claim against the Methodist Church of South Africa. The Court unanimously held that “it would not be appropriate for this Court to interfere at this stage especially considering that the line is close to the Church’s doctrines and values”, and thus dismissed her application for leave to appeal.
The effect of the Court’s decision is that the dispute is referred back to the Church for internal arbitration in accordance with the Church’s rules. According to the Court, “arbitration would be the ideal forum for Ms De Lange and the Church to see where the balance between dogma and tolerance should be struck. It is not only appropriate but it would be the best solution in the circumstances.”
And so, five years and three court cases later (first in the Cape High Court, then in the Supreme Court of Appeal, then in the Constitutional Court, all of who dismissed her case against the Church), De Lange is right back where she started in 2010 when she first took issue with the Church’s decision to discontinue her services as minister as a result of her “marriage” to her same-sex partner.
According to Andrew Selley, Founder of Freedom of Religion South Africa (FOR SA), “FOR SA welcomes the decision by the Constitutional Court. The decision recognises the right of the church to govern and interpret the Scriptures for herself. It also confirms the principle that secular courts should, as far as possible, not become involved in doctrinal disputes of a religious nature, and that these are best left to the religious community to resolve in accordance with Scripture. In this sense, the decision is a sure victory for religious freedom and autonomy for which we are grateful.”
Selley expressed his sincere gratitude to the Christian leaders and churches representing approximately 6 million people who stood with FOR SA in its application to be admitted as “Friend of the Court”, with a view to protecting religious freedom and autonomy. Commenting on the implications of the judgment for the Church in South Africa, he said that “while the De Lange judgment is a great relief and gives the Church some breathing space, we are concerned that other cases are already brewing (e.g. the Presbyterian ministers’ case recently reported in the media) that will seek to do what De Lange, because of technical difficulties in her case, has not been able to do. This is a time for the Church to stand united, in praying but also in acting. Our freedom to believe, preach and practice God’s Word, depends on it.”
The question that the Constitutional Court had to decide, was whether it was in the interests of justice to hear De Lange’s appeal against the decision of the Supreme Court of Appeal (SCA). (The SCA last year dismissed De Lange’s claim against the Church, on the basis that there was a valid arbitration agreement between the parties and that in those circumstances, it was not possible for De Lange to pursue her matter through the Courts).
The Court, per DEPUTY CHIEF JUSTICE MOSENEKE who wrote the judgment with all of the nine other Judges concurring, found that justice would not be served in circumstances where:
- There was no reasonable prospect that this Court would reverse the decision of the SCA;
- The SCA was correct when it held that De Lange had disavowed her unfair discrimination claim, and that she thus was not free to raise it for the first time on appeal before the SCA (or indeed, the Constitutional Court);
- The doctrine of constitutional subsidiarity requires that an unfair discrimination claim must be heard by an Equality Court first; and
- If this Court were to decide the unfair discrimination claim, it would do so as a court of first and last instance in a dispute of “considerable complexity and vast public repercussions arising from competing constitutional claims”.
In his reasons for the judgment, the Court referred to the fact that De Lange, seemingly now for the first time, accepted that the Church did in fact have a rule against same-sex marriage and that she had transgressed it. Her complaint now was “how the Church relied on the rule”. This, the Court found, was not an issue for determination by the Courts, but rather by way of arbitration.
Likewise, the Court found that De Lange’s charge that the Church’s stance on same-sex marriage was “irrational or hypocritical” in circumstances where it had allowed her to be in a homosexual relationship whilst being a minister but then drew the line at recognizing her same-sex marriage , was not a matter for the Court to assess without adjudging the Church dogma. Instead, the Court regarded arbitration to be the “appropriate forum to decide if the line that has been drawn by the Church in Ms De Lange’s case is acceptable”.
In conclusion therefore, the Court found that no good reason was shown why arbitration would not be suited to resolving the present dispute, and thus shut the door on De Lange’s efforts to have the matter determined by the Courts.
Is there a “Constitution-free zone”?
In a separate but concurring judgment by JUSTICE VAN DER WESTHUIZEN, he ventured the question of “how far do the Constitution and its interpretation and enforcement by courts reach into our private and social lives? Is there, somewhere in our churches, temples, mosques and synagogues – or for that matter our kitchens and bathrooms – a constitution-free zone?’ ”
According to Van der Westhuizen, he is not persuaded that we can say that the Constitution does not reach our private religious and social spheres, but that it is “rather the case that the Constitution – as a set of values and protected fundamental rights – indeed reaches even into the most intimate spaces; but carries with all the rights and values it recognises.“
He then went on to say that “it is of course one thing to say that the Constitution with its values and rights reaches everywhere, but quite another to expect the courts to make rulings and orders regarding people’s private lives and personal preferences. Courts are not necessarily the best instruments to balance competing rights and values in intimate spheres where emotions and convictions determine choices and association. In this case, the SCA, relying on the ‘doctrine of entanglement, held that the dispute at issue was quintessentially one which a secular court should try to avoid, if possible.”
“The closer courts get to personal and intimate spheres, the more they enter into the inner sanctum and thus interfere with our privacy and autonomy … The closer the tension between, for example, equality on the one side and privacy and free choice of association on the other gets to the core of our private inner sanctum, the less suitable courts are to pronounce on the balancing of these rights.”
In conclusion, Van der Westhuizen wrote that “[t]he Constitution is more than law … It is the legal and moral framework within which we have agreed to live. It also not only leaves, but guarantees space to exercise our diverse cultures and religions and express freely our likes, dislikes and choices, as equals with human dignity. In this sense, one could perhaps talk about a ‘constitutionally permitted free space’. This is quite different from contending that certain areas in a constitutional democracy are beyond the reach of the Constitution, or ‘Constitution-free’”. This case, however, did not require answers to the above vexed questions.
*FOR SA is a non-profit Christian organisation, working to protect and promote religious freedom and autonomy in South Africa. To join FOR SA (at no cost) and/or sign up to its newsletter, visit www.forsa.org.za Also follow FOR SA on Facebook at “Freedom of Religion SA” for regular updates on religious and related issues locally and worldwide.