“Beloftebos Case” will test our constitutional protections

By Freedom of Religion South Africa (FOR SA)

In a previous article, we reported that the South African Human Rights Commission (SAHRC) has now instituted legal proceedings against Beloftebos (a wedding venue near Stanford, Western Cape) in the Cape Town High Court (sitting as an Equality Court).

According to the SAHRC, Beloftebos and its owners unfairly discriminate against LGBT people, by refusing – on grounds of their Biblical conviction that marriage is between a man and a woman – to host and participate in the celebration of same-sex marriages at the venue. Beloftebos is opposing the application, and will deliver it’s response after the lockdown.

Given that Beloftebos is yet to deliver its response to the SAHRC’s allegations, FOR SA is not able to comment on the particulars of Beloftebos’   legal opposition. However, in this article we will make a few observations from a legal point of view, highlighting some of the key issues that the Court may well have to grapple with in this important case.

Unfair discrimination
Firstly, it is important to reiterate that our Constitution does not establish a hierarchy of rights. This means that the constitutional right to religious freed
om – which includes the right not only to hold certain beliefs in one’s heart, but to manifest one’s beliefs through words and through action (s 15 of the Constitution) – stands on equal footing with, and is just as worthy of respect and protection, as the constitutional right against unfair discrimination on the grounds of sexual orientation (s 9 of the Constitution).

This means that, in considering whether Beloftebos’ conduct in fact amounts not just to discrimination but to unfair discrimination, the Court must take into account – amongst other things – the fundamental rights of the owners of Beloftebos.

Furthermore, and contrary to what is often claimed by LGBT activists and reported in the media, to date no Court in South Africa has found that it is in fact unfair discrimination for a wedding venue (or indeed any service provider in the wedding industry) to refuse – on grounds of conscience, religion and belief (s 15 of the Constitution) – to accommodate a same-sex wedding. (In this regard, see a previous article for more detail).

Foreign case law
In this regard also, two recent decisions by the US and UK Supreme Courts respectively, are particularly insightful. In both instances, a Christian-owned bakery refused – on grounds of the owners’ Biblical conviction that marriage is between a man and a woman – to supply a (custom) cake celebrating same-sex marriage.

In Masterpiece Cake Shop, the US Supreme Court found in favour of the Christian baker and against the Colorado Civil Rights Commission on the basis that the Commission had shown religious bias and hostility to the Christian baker, contrary to the Constitution’s guarantee of the free exercise of religion.

By way of analogy, it will be interesting to see how the Court views the SAHRC’s own hostile attitude and conduct towards Beloftebos (and other Christian-owned wedding venues like them) as has been demonstrated in this case. As a State institution specifically mandated with the protection of human rights in South Africa, the SAHRC has a constitutional duty to respect and protect all human rights (including the right to religious freedom). The Commission should therefore arguably be slow to ‘pick sides’ and to favour certain rights at the expense of other. In various cases over the last few years however, the SAHRC has positioned itself as the mouthpiece and/or legal representative of the LGBT community against Christians – and increasingly, as in the case of Beloftebos, even instituted legal proceedings in its own name against Christians.

In Asher’s Bakery, the UK Supreme Court likewise found in favour of the Christian baker on the basis that the baker had not refused the order because of the customer’s sexual orientation, but rather because of the message that the customer wanted on the cake. In the words of the Court, the objection was to the “kind of cake, not the kind of customer”.

Likewise, it is arguable that Beloftebos’ issue is not with LGBT people since they will gladly host any other kind of event for them at the venue. However, when it comes to the specific event of a wedding celebration, their religious convictions prohibit them from hosting and participating in anything other than a one-man-one-woman marriage at their venue. For this same reason, they also would not celebrate polygamous marriages at the venue.

Another foreign case (albeit with a different set of facts altogether) worth mentioning, is Hobby Lobby. In that case, which was a remarkable victory for religious freedom, the US Supreme Court found that individuals do not lose their religious freedom when they go into business. In this case, the Court agreed that the government violated the Religious Freedom Restoration Act by putting the Christian owners of Hobby Lobby stores before an unfair choice: violate their religious beliefs by paying for drugs and devices that could terminate life, or pay huge fines.

In the same manner, it is arguably unfair to put Beloftebos before the choice of violating their constitutionally protected religious beliefs, or suffering the penalty of the law.

Freedom of expression
The Beloftebos case becomes all the more interesting when considered in light of recent judgements by our Courts on the fundamental right to freedom of expression (s 16). In this regard, our Courts have repeatedly – and very recently again in various cases before the Supreme Court of Appeal (SCA) – held that freedom of expression is a broad right which includes statements that may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive – as long as it does not spill over into “hate speech” as defined by s 16(2)(c) of the Constitution, namely “the advocacy of hatred … that constitutes an incitement to cause harm”.

For example, in the controversial case of Jon Qwelane v SAHRC, the SCA recently found that the definition of “hate speech” in s 10 of the Equality Act of 2000 – which includes, amongst others, “hurtful” speech – is broader than the definition of “hate speech” in s 16(2)(c) of the Constitution and is therefore unconstitutional. On this basis also, the Court set aside the earlier judgement of the High Court which had found Qwelane’s statements (amongst others, that homosexuality was not “the natural order of things”, and that “wrong is wrong”) to be “hate speech” against LGBT people in terms of s 10 of the Equality Act. The SCA was emphatic that “we should be allowed to be firm in our convictions and to differ on the basis of conscience”, albeit urging Qwelane to “in our beloved country, find a way in which to relate to each other more graciously.”

Against this backdrop, it seems rather inconsistent that, under section 16 of the Constitution (relating to freedom of expression), a person would be completely within his/her legal rights to say, for example, that “marriage is between a man and a woman”; and even to go further and say that “homosexuality is sinful” or that “homosexuals will go to hell”; and even to make much more inflammatory or downright offensive statements short of advocating hatred that constitutes incitement to cause harm (i.e. “hate speech”). The law would protect speech (and by implication, the speaker) in spite of it being politically incorrect, bigoted or homophobic.

By contrast, if the same person – on grounds of his/her Scriptural belief that marriage is between a man and a woman, and in the most polite and gracious way possible – declines to participate in a same-sex marriage, the law would come down on that person like the proverbial “ton of bricks” for hurting the LGBT couple’s feelings (or, to put it in legal terms, impairing their dignity).

In this regard, the following statement by Prof. Pierre de Vos (quoted in the SCA’s judgment in Qwelane) is insightful:

“In a vibrant democracy which respects difference and diversity – also diversity of opinion – it would be dangerous to ban all speech that could be construed as intending to be hurtful to another person merely because of that person’s race, sex, sexual orientation, religion, language, ethnicity, culture or age.” (at para 69).

From a legal consistency point of view, there is no reason why speech that is (potentially) hurtful to someone’s feelings should – in the interest of democracy and pluralism – enjoy legal protection, yet conduct that is (potentially) hurtful to someone’s feelings should incur legal penalties. This is particularly true where, in a case such as Beloftebos, the line between expression / conduct is blurred and it is arguable that their refusal (on grounds of religious conviction and belief) to participate in a same-sex marriage, is indeed an expression of their religious belief.

Conclusion
In view of the aforegoing, it is clear that the Beloftebos case will raise interesting, and important, questions around the extent to which persons / businesses can be forced to provide goods and services contrary to their conscience and beliefs, and whether the fundamental right to freedom of conscience, religion, thought, belief and opinion in fact belongs to every citizen as promised by s 15 of the Constitution – or is rather an eloquent, but hollow promise.