Judgment reserved on issue of “Gay Marriage” in Church

by Daniela Ellerbeck
28 August 2018

On Tuesday, 21 August, the long-awaited case of Gaum vs Dutch Reformed Church of South Africa (“the DRC”) was finally heard by a full bench (Judges Raulinga, Potterill and Molefe) of the Pretoria High Court.  The judges heard a full day of argument by the various Counsel for the Applicants (LGBT members of the DRC), the Respondents (the DRC), the Commission for Gender Equality (“CGE” – the first amicus curiae in the matter), the Minister of Home Affairs and the Alliance Defending the Autonomy of Churches in South Africa (“ADACSA” – the second amicus curiae in the matter).

The Court reserved judgment, which could take a while to come out.  While it is difficult to say – and only time will tell – which way the Court will lean, it is very possible that in any event this will not the end of the road because the losing party will likely consider an appeal to a higher court.

On behalf of FOR SA, we extend our sincere gratitude to everyone who prayed for the case and in particular, for Adv Reg Willis (Chairperson of Christian Lawyers Association) and Adv Nadene Badenhorst (Legal Counsel for FOR SA) who appeared on behalf of ADACSA.  This is a very important case that can have severe implications for the autonomy of all churches and religious groups in South Africa.

Arguments made in Court
The case before the Court, concerned the 2016 decision by the Dutch Reformed Church (“DRC”) Synod, to reverse its 2015 decision removing the celibacy requirement for homosexual ministers and permitting its ministers to solemnise same-sex civil unions (should they so choose). At the hearing, Counsel for the various parties presented legal technical arguments on why the 2016 decision – both from a procedural, and a substantive / constitutional, point of view – should, or should not, stand.

Adv Jeremy Gauntlett SC, appearing for the Applicants, had first opportunity to address the Court and argued that the Church’s decision falls foul of various provisions of the Promotion of Administrative Justice Act, 2000 (PAJA) – which essentially provides that “administrative decisions” should be taken in a manner that is procedurally fair – and should for this reason be set aside. In turning to deal with the constitutionality of the 2016 decision, he argued that the Church cannot “privatise” discrimination and that “if it holds good for race and for gender, then it should hold good for sexual orientation”. He also sought to liken the DRC with the Mancoba Seven Angels cult, arguing that just as the cult cannot hide behind “freedom of religion” to justify the (illegal) keeping of sex slaves, the DRC cannot rely on “freedom of religion” to justify its “illegal discrimination”.

In a short address thereafter, Counsel for the CGE (as first amicus curiae), referred the Court to the CGE’s written submissions. These submissions essentially argued that a constitutionally compliant interpretation of the Civil Union Act, 2006 does not allow churches a discretion whether or not to solemnize same-sex unions. If a church solemnizes heterosexual marriages, it must also solemnize same-sex unions. (Not much was made of the CGE’s submissions during the hearing however).

Next, the Counsel for the Minister of Home Affairs, took the stand and briefly addressed the Court on why the CGE’s application for admission as amicus curiae, from a legal technical point of view, was problematic.

Shortly before lunch, Adv Schalk Burger SC started argument for the Church.  Dealing firstly with the procedural aspects of the 2016 decision, Adv Burger argued that PAJA does not apply to the Church’s decision, which was not “administrative action” for purposes of the Act.  Turning to the substantive / constitutional issues, Adv Burger argued that while it is correct that the DRC’s decision discriminates on grounds of sexual orientation, the constitutional prohibition is against unfair discrimination. In this instance, the decision is not unfair because the Constitutional Court in the case of Minister of Home Affairs v Fourie (which legalised same-sex marriage in 2005) specifically held that the legalisation of same-sex marriage does not mean that religious organisations are now obliged to celebrate marriages not conforming to their beliefs.  In conclusion, Adv Burger pointed out that if the Court were to find that the DRC’s decision amounts to unfair discrimination, it will have repercussions throughout the religious society, and that “more churches would be upset than just the DRC”.

Finally, Adv Reg Wills (appearing with FOR SA’s Adv Nadene Badenhorst) had opportunity to make brief submissions to the Court on behalf of ADACSA (the second amicus curiae). ADACSA referred the court to international and foreign law, which jealously guard the autonomy of churches to determine their own doctrines free from interference by the State or anyone else. Contrary to what had been suggested by Adv Gauntlett (for the Applicants), the issue before the Court is squarely doctrinal. As such, the doctrine of entanglement – which prohibits the Court from getting involved in doctrinal matters – must apply.

Potential impact on other churches / religious groups
The outcome of this case – both from a procedural, and a substantive / constitutional – point of view, will be important for all churches and religious groups in South Africa. From a procedural point of view, should the Court find (as argued by the Applicants) that PAJA applies, courts would henceforth have the power to measure the procedural fairness of church decisions against both the church’s own regulations, process and procedures as well as the requirements which apply to decisions made by persons or institutions which have a public function or exercise a public power. This would set a completely new precedent.

From a substantive / constitutional point of view, should the Court find (as argued for by the Applicants) that the DRC’s decision amounts to unfair discrimination against LGBT people, the decision would effectively set a precedent for each and every other church / religious group who are unable – on grounds of their religious belief – to solemnize same-sex unions.  Furthermore, the decision would set a precedent for the courts to interfere with any doctrinal belief of any church or religious group. While the State does have the right to interfere to – for example – protect vulnerable members from readily discernible, serious harm (for example, physical or sexual abuse of a child, or financial fraud by church officials) – it should emphatically not interfere to support “politically correct” viewpoints which the religious community rejects.

The decision of the Court has greater importance in the context of the recent proposal by COPE MP Deirdre Carter to remove the “conscientious objections clause” (in terms of which State-employed marriage officers have the right to refuse – on grounds of their conscience, religion and belief – to solemnize same-sex unions), from the Civil Union Act, 2006. Should the Court find that churches / religious marriage officers must – potentially against their conscience, religion and belief – solemnize same-sex marriages, it is difficult to see how the conscience of State-employed marriage officers would remain protected.

*For more information about ADACSA, or to join the Alliance, please contact Teresa Conradie at Maphalla Mokate Conradie Inc on 012 369 6200 or [email protected] 

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