Wedding venue case calls for balanced approach — Michael Swain

Originally published in Freedom of Religion South Africa

Recently, the owners of the Beloftebos wedding venue were back in the crosshairs because they declined the opportunity to host (and for their family to be involved in) the celebration of the same-sex wedding of Megan Watling and Sasha-Lee Heekes. Social media, as well as news agencies from around the world, jumped on the story. Given the sense of outrage and the level of vilification and condemnation of their decision, it is important to pull back the lens and quieten the fire and the fury so that the matter can be examined in the cool light of the South African Constitution and international human rights law.

“All people, but not all events”
Significantly, the owners of Beloftebos did not discriminate against the couple on the ground of their sexual orientation, nor because of their decision to marry. They fully respect that every person has the right to make their own choices regarding who and how they love, which is recognised by the Constitution and facilitated by the Civil Union Act, 2006.

However, they hold the belief (which has been the position of Christianity, and indeed other faiths, around the world for thousands of years) that marriage is between one man and one woman. For Christians, marriage is also a deeply holy and symbolic picture of the relationship between Christ (the Bridegroom) and His Church (the Bride of Christ). As such, it is neither incidental nor irrelevant but represents a central tenet of their faith.

By contrast, had the same couple asked Beloftebos to book their venue for e.g. a birthday party – which would not require Beloftebos to host or celebrate an event that would in any way violate their scriptural beliefs – they would have certainly been accommodated. Equally, had anyone (regardless of their sexual orientation) requested a booking for e.g. a Halloween party – an event which would require them to violate their own scriptural beliefs – they would have been refused.

To be very clear: the owners of Beloftebos happily serve all clients, but – because of their religious beliefs and convictions – they are unable and unwilling to be personally involved in celebrating every type of event.

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Unfair discrimination?
It is worthwhile pointing out the obvious – the owners of Beloftebos clearly exercised discrimination (or differentiation) in their decision. However, discrimination in and of itself is not unlawful or illegal. Section 9 of the Constitution – often referred to as the “equality clause” – says that no one may be unfairly discriminated against on a number of prohibited grounds, including race, age, sex, gender and sexual orientation. Significantly, the list also includes “religion, conscience and belief”. Although “age” is evidently a protected category, the State discriminates against people under the age of 18 by not allowing them to drive a car unsupervised, to buy alcohol or to vote in a political election. This is not deemed to be unfair because there are sound reasons behind this restriction. It is, therefore, the test of unfairness which lies at the heart of whether (or not) discrimination is lawful.

Importantly, it is settled law that there is no hierarchy of rights in the Constitution. They each have equal status and are worthy of equal protection. Whenever courts have to consider the challenge where two rights are in apparent conflict, their task is to find a solution where, although one right may need to be limited, it should be in such a way that the maximum benefit of both rights can still continue to be enjoyed. It is never intended to be a “winner takes all” outcome where one right simply trumps another.

Section 10 is also relevant, which declares that “Everyone has inherent dignity and the right to have their dignity respected and protected”. The theme of human dignity is woven throughout the Constitution and it is evidently relevant here: In this case, the couple clearly believe that their human dignity has been infringed because Beloftebos made the decision not to celebrate their same-sex wedding with them. However, human dignity is an equally vital component of a person’s religious belief, and for this reason, also, the Constitutional Court has on a number of occasions already confirmed that everyone is entitled to express and to live out their faith publicly.

By illustration, in the news this week has been the decision by the South African National Defence Force (SANDF) to withdraw charges against Muslim major, Fatima Isaacs, who refused to remove her headscarf. Her choice (and even insistence) that she be allowed to wear this item is because her faith is an integral part of her human dignity. It is therefore worthy of respect and protection and should be reasonably accommodated. By contrast, the sincerely held belief of the Beloftebos owners has been lambasted and ridiculed as outdated, bigoted and homophobic although all they are asking is that their rights and their human dignity be afforded equal respect and consideration.

An international trend
There have been very similar situations and cases in both the USA and the UK, where wedding industry service providers, in particular, have been targeted by LGBT activists. In the USA, Jack Phillips was taken to court by the Colorado Human Rights Commission (HRC) because he said that he was unable to use his creative talents to decorate a wedding cake to celebrate a same-sex wedding. His position was that he was willing to sell the couple any cake they wanted, but he did not feel able – on the grounds of his sincerely held belief that marriage is between a man and a woman – to decorate the cake himself, nor did he believe that he should be forced to do so. The case went all the way to the US Supreme Court where it was decided in his favour, on the procedural ground that the Colorado HRC had evidently demonstrated an unfair bias and approach to Jack simply because of his faith. Interestingly, the same Colorado HRC immediately filed another case against him, which was also subsequently dropped. A third case is now pending.

In the USA also, Barronelle Stutzman, a 75-year old American florist, was taken to court after she declined to produce a customised flower arrangement for the wedding of a same-sex couple who had been longstanding customers, and for whom she had made many flower arrangements for various other occasions. She offered them any of the premade flower arrangements but explained that she was unable – because of her biblical beliefs regarding marriage – to use her personal creativity to help celebrate something which she did not believe in. Her case is also now awaiting a decision from the US Supreme Court.

A similar case in the UK involved Asher’s Bakery, owned by a Christian family in Northern Ireland. An LGBT activist, during the debate on whether or not Ireland would vote in favour of legalising same-sex marriages, called to order a cake and then said he wanted it to be decorated with a Simpson’s cartoon stating “Support Gay Marriage”. Ashers said that while they would happily sell him any cake, they should not be compelled to decorate it with a message that they were unable to support for reasons of their faith. The UK Supreme Court ultimately upheld the rights of the Christian bakery, on the basis that the bakery did not discriminate against the customer because of his sexual orientation. In fact, if anyone had placed the same order, it would equally have been refused. Rather, the bakery’s objection was to the message it was being asked to promote on the cake, and which was against its religious beliefs. (This case is now on appeal to the European Court of Human Rights).

Dangerous implications for everyone
In all these cases, there is a fundamental human rights issue at stake which goes far beyond what anyone may think of the faith or actions of those who have refused to compromise their beliefs in this specific area. No matter how much one may sympathise with the hurt and offense felt by the LGBT complainants, if they succeed in law in forcing a business or an individual to do, or say, something to which they are fundamentally opposed because of a conflict of conscience and belief, this will set a most dangerous precedent. Significantly, the principle established will not simply apply to faith issues, but will have universal application. It will be equally applicable to the socio-political sphere and will mean that anyone may be able to be forced to do or say anything which those who have the power want them to. There is no greater abuse of human rights than this, whose end was horrifically demonstrated during the last century in Hitler’s Germany, Stalin’s Soviet Union and Mao’s China.

Conclusion
In conclusion, it is regrettable that Megan Watling and Sasha-Lee Heekes have elected to resort to legal action and to put themselves forward as champions for the rights of the LGBT community. Instead of respecting the equality rights of the Beloftebos owners to adhere to their sincerely held religious convictions and beliefs, they have decided to take a highly adversarial position with a view to either forcing the owners to act contrary to their convictions or to face severe and punitive sanctions.

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Unfortunately, in an age of identity politics and political correctness, it is evidently insufficient that the couple’s sexual orientation rights are fully protected and supported in law and are clearly respected by the owners of Beloftebos – who are not denying them the right to get married, but are only asking that their constitutional right to religious freedom (and the ability to not be forced to participate in and host an event that is irreconcilable with their deeply held religious convictions) be equally respected. Instead, they are now facing the stark choice of being forced to put their faith and beliefs aside and to support and celebrate what the couple believe, or else!

International and human rights law have long recognised that religious freedom rights lie at the heart of any true democracy. No one should ever be placed in a position whereby if they obey secular laws, they risk facing eternal consequences but if they disobey these laws, they will face penalties imposed by the State. It is hoped that, in a nation where we have a Constitution which states that we “believe that South Africa belongs to all who live in it, united in our diversity”, the courts will ensure that the vital freedoms of both parties are balanced and preserved.