By Adv Nadene Badenhorst, Legal Counsel of FOR SA

A recent article in Die Burger regarding the settlement agreement concluded between Christian author Gretha Wiid and the Human Rights Commission (HRC), states as follows:  “You may be a Christian and practise your religion, but you cannot use it to discriminate against others”.

This statement is an over-simplification and therefore a misrepresentation of the legal position in South Africa.

Firstly, our Constitution does not have a hierarchy of rights. This means that the fundamental right to sexual orientation and to freedom of religion, stand on equal footing. The State (including the HRC) has as much an obligation to protect the religious freedom of religious institutions and individuals, as it has an obligation to protect LGBT persons against unfair discrimination.

In fact, the constitutional prohibition on unfair discrimination does not only include sexual orientation, but specifically also prohibits unfair discrimination (by the State, or anyone else) on grounds of someone’s conscience, religion or belief.

This means, amongst other things, that when the State (including the HRC) investigates a complaint against a religious institution or person, it must adopt a neutral attitude and may not be biased simply because the State, or the particular State officials involved, do not hold the same religious convictions. (It is on this very point that the Colorado Human Rights Commission recently lost their case against a Christian baker in the case of Masterpiece Cakeshop vs Colorado Civil Rights Commission in the US Supreme Court).

To emphasise, the Constitution does not prohibit discrimination (that is to treat different people differently). It only prohibits unfair discrimination. Whether discrimination is fair or unfair in a particular instance, depends on various factors including the context, the reason for the discrimination, etc.

This exercise is generally known as the “balancing of rights” and is aimed at reconciling, as far as possible, competing fundamental rights with one another so that the infringement of rights is minimalised and the enjoyment of rights maximised.

For this reason, and because every case has to be considered and judged on its own merits, it is wrong to say that LGBT rights always trump religious freedom, and that religion or belief may never be a reason to “discriminate”.

This is simply not what the Constitution or the Equality Act says, and no court has found this.

In the case of Minister of Home Affairs vs Fourie (2005) that legalised same-sex marriage in South Africa, the Constitutional Court specifically said that, in the interest of diversity, religious institutions retain the right not to solemnise same-sex marriages.

In other words, religious institutions may – on grounds of their Scriptural conviction that marriage is a sacred union between one man and one woman – discriminate against LGBT persons in this regard, and it is not unfair.

It is also trite law that religious institutions have the right to terminate the membership of persons who do not hold to their principles and rules. In such a case, a complaint of “discrimination” against the religious institution will probably not succeed, as it is not unfair of a religious institution to expect that persons who voluntarily join themselves to the institution as members, should also subject themselves to the institution’s principles and rules.

In other words, in such a case, a religious institution may, on grounds of its / its members’ religious convictions and in the interest of safeguarding the uniform character of the institution, “discriminate” against such persons.

THE RIGHT TO SAY WHAT YOU BELIEVE
Returning to Wiid’s case, it is unfortunate that the settlement agreement is being regarded as a “win-win situation” doing justice both to the rights of LGBT persons and Wiid’s religious freedom.

Our Constitutional Court has already on numerous occasions confirmed that s 15 of the Constitution does not only include the right to believe, but the right to say (also through teaching and preaching) what it is that one believes, and to live it out one’s beliefs.

In this regard specifically, the Constitutional Court (per judge Albie Sachs) stated as follows in the case of National Coalition of Gay and Lesbian Equality versus Minister of Justice (1998):  “those persons who for reasons of religious belief disagree with or condemn homosexual conduct, are free to hold and articulate such beliefs”.

In this case, Wiid’s right to say what it is she believes, and therefore her freedom of religion, has clearly been curtailed.

Freedom of religion – and the constitutional duty on the State (including the HRC) to protect it – is an empty promise if it does not also include the right to openly say what it is one believes, and why.

Freedom of speech is also one of the hallmarks of a democratic society and all of us – regardless of our religious convictions, or sexual orientation – should be concerned when the State starts telling us what we may and may not say.

That is not democracy – that is totalitarianism.

Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.

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