Why We Cannot Regulate Religion (Part 1)

by Daniela Ellerbeck
2 December 2015

by Andrew Selley (Founder of FOR SA, & Leading Apostle in Four12 global partnership of churches)
& Advocate Nadene Badenhorst (Legal Counsel, FOR SA)

In a previous article, Freedom of Religion South Africa (FOR SA) reported on the CRL Rights Commission’s current investigation into the “commercialisation” of religion and abuse of people’s belief systems, and the subpoenas issued to various religious leaders (including the leaders of prominent churches) to appear before the Commission.
While we (FOR SA) share the Commission’s concerns about unscrupulous pastors who abuse their positions to manipulate the poor out of money for selfish gain, we are concerned that the scope of the investigation is overbroad and touches on matters of religious doctrine which are protected from State interference. In similar vein, we are concerned that the Commission’s proposed solution to the problem, namely “self-regulation” of religion (including the Church), is not a workable or constitutionally permissible solution. (To read the article, click here.)

In a series of three articles, we will explain why religion and especially the Church, cannot be regulated (Part 1 – this article); present an alternative, and constitutionally permissible, solution to the problem of “rogue pastors” (Part 2); and discuss, from a Scriptural point of view, how the Church should be responding to this problem (Part 3).

At the outset, we want to make it very clear that FOR SA has great respect, and is very grateful, for the CRL Rights Commission’s persistent efforts to protect and promote the rights of religious communities (including the Church) in South Africa. The Commission has been a great friend to FOR SA and to religious communities, and even though we have certain concerns regarding the current investigation and the proposed regulation of religion (which we have shared with the Commission), we can understand why the Commission feels the need to investigate. We appreciate that the Commission’s hope is to help religious communities – not persecute them. As such, our concerns should in no way be read as negative critique on the Commission or its work, but rather as constructive input in an endeavour to assist the Commission in finding workable, and legal, solutions to the problem. (As mentioned in our article two weeks ago, the Commission has already publicly welcomed and thanked FOR SA for our proposals, and we will continue to take hands and work with the Commission in this regard).

No interference in doctrine

As a starting point, it is important to recognise that the Constitution guarantees religious freedom and that the Constitutional Court (in Prince v President of the Law Society of the Cape of Good Hope, 2002) has already found that people should be free to believe, teach and preach, and practise their beliefs without interference or punishment by the State, no matter how “bizarre, illogical or irrational” those beliefs may seem. Doctrine (being a belief or set of beliefs) is therefore protected by the Constitution and, as a matter of principle, is immune from interference or restriction by the State or by anyone else – unless there is a constitutionally acceptable purpose for the interference or restriction (which we will look at in Part 2 of this series).

The concern with the current investigation is that, in some respects at least, it amounts to an investigation into the rationality of certain beliefs and an interference with doctrine (particularly so if these aspects were ultimately to be legislatively regulated, as proposed by the Commission). Statements such as the following made in discussion, or to the media, should raise more than eyebrow:

  • “We want to understand why people believe or practise the things they do. There needs to be a reason, it needs to be rational. It can’t just be because God or the Holy Spirit said so. God doesn’t speak like that.”
  • “When certain companies place advertisements claiming their products could deliver certain results, they were accountable to the Advertising Standards Authority of SA, which made sure that advertising was truthful. Why is not the same for churches and traditional healers? If they claim they can do certain things and miracles, who holds them accountable to ensure that they actually deliver?”
  • “In the charismatic sector, you start up and report to no one, you report to heaven. If I have a calling tonight, by tomorrow I can buy a tent and a sound system, I can call myself bishop, a prophet, whatever – and I’m good to go … it can’t be like that when you have access to vulnerable people.”

The Commission has repeatedly assured religious leaders that the investigation is not concerned with doctrine and that their end goal is not to regulate doctrine. As such, it is not clear why the subpoenas required pastors to produce their churches’ Statements of Faith. Again, while it is so that some ‘pastors’ hold some very strange (often unbiblical) beliefs, it is not for the State or any Chapter 9 institution (as a “State institution”) to tell pastors, or their congregants, what they may/should, or may/should not, believe and how they may/should give outward expression to those beliefs. The right to believe whatever one wants to believe, belongs equally to the pastor who believes that God can heal the sick, and to the ‘pastor’ who believes that a flower can turn to chocolate in a person’s mouth. From a legal point of view, both should be free to believe, preach and teach, and practise that belief – without questioning, or interference by the State. (That is not to say that, from a Biblical point of view, the Church itself should not mark ‘pastors’ who, in the name of Christianity, teach false doctrines, as we will discuss in Part 3 of this series). By the same token, in terms of our Constitution, anyone is free to start a new church (whether in a building, a tent or under a tree) and invite others to be a part of such voluntary association of persons for religious purposes. This right to establish religious associations, assemble and secure premises for these purposes, is fundamental to the right to freedom of religion.

To the extent that the subpoenas require pastors to give evidence regarding “the institution where they studied and where they received accreditation”, and proof of the “person/s or the authority that ordained them”, again our concern is that this aspect of the investigation is touching on doctrinal issues. We explain: some churches (particularly those who view church as “an institution”) will only appoint persons who hold a degree in theology or are similarly qualified, to positions of leadership in the church; other churches believe that the only qualifications for leadership are those set by Scripture. According to their interpretation of Scriptures such as 1 Timothy 3:1-13, it is not theological training that qualifies one for appointment as a pastor (or deacon) in the church, but godly character and a sense of the call of God to ministry. As such, the issue is squarely doctrinal.

In terms of the subpoenas further, pastors would be required to give evidence regarding “the mechanisms utilised by the church to generate and/or receive income (tithing / pledging / donating / offerings / investments)”, and also “how the income from the church is utilised (salaries / investments / community work / charity work / NGO work etc)”. To this end, the subpoenas required pastors to produce the Church’s annual financial statements, as well as bank statements of all bank accounts of the Church. Again, while we understand the Commission’s concern for financial propriety in religious communities, our concern is for issues of doctrine which should be safe from investigation and/or regulation. For many believers, tithing is a Biblical command (based on Scriptures such as Matthew 23:23), and no church should have to defend its doctrine in this regard. In similar vein, some churches hold the view (based on Scriptures such as 1 Timothy 5:17-18) that the Bible commands them to make sure that their pastors do not just scrape by but are well-paid – for them it is a doctrinal issue and as such, one in which the State has no business.

The problem with “self-regulation

The CRL Rights Commission believes that “self-regulation” is the answer and has said that following the investigation, it intends making such recommendation to Parliament. According to the Commission, religious leaders should be regulated in the same way as lawyers, doctors, social workers etc. This could take the form of an umbrella body with chapters for different religions (e.g. a Council of Elders for Christianity), who will call pastors out when they are doing something out of the ordinary.

To be very clear: “Self-regulation of the Church” in the sense proposed by the Commission, does not mean that churches will be free to regulate (meaning “govern”) their own internal affairs, free from interference or restriction by the State or anyone else. Instead, what the Commission has proposed and what it means by “self-regulation of the Church”, is that there should be a central oversight body, made up of representatives of the Christian faith, but which body is recognised by the State and has the power of the State behind it (by reason of the legislative regulations creating such body, and giving it its powers, functions and responsibilities, in the first place). It is “self-regulation of the Church” in THIS sense, that we are concerned about for the reasons set out hereunder.

From a legal perspective

We have shared our concern with the Commission that, from a constitutional point of view, regulation of religion (even “self-regulation”) is not permissible. Firstly, because religious freedom guarantees people the right to make up their own minds as to what they believe (including how they interpret the Scriptures) and also how they practise their beliefs. The State cannot regulate this, and neither can it be regulated by a State-recognised religious group (such as a Council of Elders) who would have the force of the State behind it. The Constitution simply does not permit the State, or anyone else for that matter, to decide what beliefs and practices would be acceptable and what not, or to ‘clamp down’ on those churches and pastors whose beliefs and practices are deemed ‘unacceptable’. This would be a gross violation of religious freedom and autonomy, and freedom of association!

Contrary to what has been suggested, pastors are not the same as lawyers, doctors or social workers. While it is obvious that, in the case of lawyers, doctors and social workers, a certain level of knowledge and expertise is required in order to qualify and practice as such, this is not necessarily true of pastors who (as many would believe, according to their interpretation of the Scripture) are qualified by godly character and the call of God only. If the State (or a Council of Elders recognised by the State) were to insist on a theology degree from a university (many of who teach very liberal theology) or similar qualification in order for a person to be formally recognised as a “pastor”, the State would be elevating itself above the Word of God and require what God Himself does not. (Think about John the Baptist and the Twelve Disciples – none of them had special training in the Scriptures qualifying them for ministry. Even Jesus Himself would have been disqualified for lack of “accreditation”!). Placing such restrictions on leadership, would be a serious overstepping on the part of the State and a gross interference with religious freedom and the autonomy of the Church to govern her own affairs.

From a church history perspective

Further, from a church history point of view, regulation (even “self-regulation” in the form of a Council of Elders) cannot be supported. Church history has shown that regulation by any human body with the power of the State behind it, always ends up persecuting the true Church. One only needs to think of John the Baptist, Jesus and The Twelve who were not recognised by the religious oversight bodies of their day and thus persecuted and often killed by the State. History shows Luther breaking away from Catholicism to reform the Church, and Protestants breaking from Protestants to reform the Church. None of these could have happened with a State-recognised group deciding what is “acceptable”.

We must remember that even the great reformer and theologian Calvin (who had the State backing him in ecclesial power) ordered the drowning of the Anabaptists because he believed the doctrine of adult immersion (baptism) heretical. Or later, Calvinists who persecuted Arminians, closing their churches, arresting and killing their pastors and driving out Arminian belief and Christians from much of Europe – with the power of the State. Also, Wesley and Methodist churches, along with many Protestant, charismatic churches could not exist had this State power not been removed from the Calvinists.

If we do not learn from history, we will continue to make history’s mistakes. Luther said, “the Church is always reforming herself” and a regulatory body of power over all, would stop the Church from being able to reform, persecuting the new moves of God’s Spirit.

From a practical perspective

Finally, from a practical point of view, it is difficult to see how a central regulating body could truly be representative of all the different doctrinal streams within the Christian faith, i.e. cover the entire spectrum from those who hold to a very literal interpretation of the Scriptures, to those who subscribe to a very liberal view of the Scriptures. There would always be the risk that one group over time would take control of the regulating body (say for e.g. liberals, especially in the light of how secular humanism and liberal theology are sweeping Western nations including South Africa) and rule that (for e.g. conservative) beliefs and practices that do not align with their own, be outlawed.

When Church regulates Church, who decides what is acceptable and what not? If there are so many denominations (not including independent churches), how could one central regulatory body reflect all of these? Most of these groups are so divided because of doctrinal matters that differ enough and are therefore important enough to that group, that they could not stay in the denomination they left. Historically, many new groups would have faced persecution for breaking away, yet their beliefs were so strong that they all felt that they could not remain. Thus it would be impossible for one body to represent all, while maintaining religious freedom.

The Center for the Study of Global Christianity at Gordon-Conwell Theological Seminary estimated 34,000 denominations in 2000, rising to an estimated 43,000 in 2012. We encourage all to think multi-generational: we don’t want to put things in place which cause our children to suffer in their day!

As mentioned earlier, this article is Part 1 in a 3-part series on why religion cannot and should not be regulated (or even “self-regulated” as has been proposed). In Part 2, FOR SA presents an alternative, and constitutionally permissible, solution to the problem of “rogue pastors”; and finally, in Part 3, we discuss from a Scriptural point of view, how the Church should be responding to this problem.

*FOR SA is a non-profit Christian organisation, working to protect and promote religious freedom and autonomy in South Africa. To join the organisation (at no cost) and/or to sign up to its newsletter, visit forsa.org.za Also follow us on Facebook @FreedomOfReligionSA for regular updates on religious freedom and related issues locally and worldwide.


To share this article click here

Adv Nadene Badenhorst

Adv Nadene Badenhorst is an Advocate of the High Court of South Africa. She serves as FOR SA’s full-time Legal Counsel.

Support FOR SA

Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by:

  • Making a financial contribution to FOR SA at https://forsa.org.za/donate/ As a non-profit organization, we are entirely dependent upon God’s grace for finances. Your generosity will help make a significant difference as we work to fulfill our mission to keep the Gospel free by advocating for religious freedom. We appreciate every gift, big or small!
  • Signing up (at no cost) to FOR SA at https://forsa.org.za/contact-us/join-us/ and subscribing to our Newsletter.
  • Praying for us as we defend this precious freedom before the government and courts of law.
  • Following us, and sharing our posts, on Facebook at “Freedom of Religion SA”.
  • Informing us, should you become aware of any case in which religious freedom is threatened.