A Guideline for Churches and Religious Organisations

By Adv Nadene Badenhorst, FOR SA Legal Counsel

On 7 March 2019, the Pretoria High Court delivered judgment in the case of Gaum & others v Janse van Rensburg & others. In terms of the Court Order, the decision on same-sex relationships adopted during the extraordinary meeting of the General Synod of the Dutch Reformed Church during 7-10 November 2016 was declared unlawful and invalid, and the decision was reviewed and set aside.

Since the judgment, Freedom of Religion South Africa (FOR SA) has been approached by various churches and religious organisations wanting to understand the implications of the judgment against the Dutch Reformed Church, for them, if any.  For example: does it mean that they must allow practising homosexuals to be ordained as pastors in the church? Does it mean that they have to marry homosexuals, even if it goes against their religious doctrine and belief? The short answer to this is, no, not necessarily.

WHAT WERE THE FACTS, AND REASONS FOR THE JUDGMENT?

In 2015, the General Synod of the Dutch Reformed Church took a decision removing the celibacy requirement for homosexual pastors in the Dutch Reformed Church, and permitting (but not forcing) pastors in the Dutch Reformed Church to solemnise same-sex unions.

This decision was reversed in 2016, and it is this reversal that the Court had to consider – both from a procedural point of view (i.e. did the Synod follow the correct internal procedures in reversing the 2015 decision), and from a substantive/constitutional point of view (i.e. did the 2016 decision violate any constitutional rights of homosexual people?).

The Court found that on both points – procedurally, and substantively – the Synod got it wrong, and thus set the 2016 decision aside. (Technically, this means that the 2015 decision stands until set aside or replaced in terms of proper internal procedure).

TO WHOM DOES THE JUDGMENT APPLY?

As the case was brought against and involved the Dutch Reformed Church only, the judgment (and Order) apply and are binding only on the Dutch Reformed Church. It does not have automatic application to, or binding force, on churches and religious organisations outside of the Dutch Reformed Church.

In other words, the judgment does not force any other church or religious organisation in South Africa to ordain practising homosexuals as pastors, and/or to solemnise same-sex unions.  In terms of the Civil Union Act, pastors who want to solemnise same-sex unions must have a specific licence to do so – this provision stands and has not in any way been changed by the judgment.

HOWEVER WHAT CAN WE LEARN FROM THE JUDGMENT?

While the judgment (and Order) do not automatically bind churches and religious organisations outside of the Dutch Reformed Church, it is possible that other courts may refer to or even rely on the judgment in future cases brought against other churches or religious organisations.

For this reason, it is important – specifically with a view to protecting (the autonomy) of the church and religious organisations against unnecessary interference by the Courts, as far as possible – to take note of certain aspects of the judgment and the implications thereof for churches and religious organisations.

  1. Churches and religious organisations must diligently follow internal rules and procedures when making decisions. Failure to do so, may result in a procedural challenge as a result of which the entire decision (if found to be procedurally defective) may be set aside by a court of law.
  2. Churches and religious organisations would be well advised to stipulate the central tenets of their religious doctrine or faith (including on the issue of marriage) in a Statement of Faith, which all members and leaders must subscribe to and adhere.[1] In this regard and in particular:
    1. Where it is necessary – because of religious convictions or beliefs – to treat different persons differently (with regard to, for example, membership or leadership criteria, employment policies, etc), churches and religious organisations would be well advised to substantiate this (ideally with reference to Scripture and the inherent requirements of the job) in their internal policies and codes.,
    2. It is also a good idea to have members and leaders sign a Code of Conduct in terms of which they agree to disciplinary procedures and measures (including potential ex-communication) in case of a breach of the Church’s Statement of Faith and/or Code of Conduct.
  3. It is important to be consistent in the application of one’s religious convictions and beliefs.[2] Where a church – for example – allows practising homosexuals to become members or even leaders in the church, to participate in the sacraments of baptism and communion etc, but does not allow them to get married in the church, that may be seen as problematic depending on what has been expressly agreed to.

Finally, should a case be threatened or brought against your church or religious organisation in any forum, requiring it to defend your Biblical beliefs (on the issue of marriage or otherwise), or if you learn of such situations, please immediately inform FOR SA!

*NoteThis document is intended to serve as a general guideline only and cannot replace specific legal or pastoral advice addressing individual circumstances. FOR SA does not accept any responsibility for reliance placed upon it, and it may be wise to obtain legal advice particular the specific church or religious organisation involved.

For more information, contact:

FREEDOM OF RELIGION SOUTH AFRICA (FOR SA)
Tel:  021 – 556 5502
E-mail:  legal@forsa.org.za
Facebook:  Freedom of Religion SA

[1] In the case of the Dutch Reformed Church, the Court found that the Church was “split on its interpretation of the Bible pertaining to same-sex marriages and leadership in the Church based on sexual orientation”. It appears that the lack of consensus or certainty in the Dutch Reformed Church, opened the door to the Court’s scrutiny of the Church’s position in this regard.

[2] In the case of the Dutch Reformed Church, the Court took issue with the fact that the Dutch Reformed Church allowed practising homosexuals to study to become a minister in the Dutch Reformed Church, but then disallowed them from actually being ordained as a minister in the Church. This seemed to the Court to be an inherent contradiction.

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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