The Alliance Defending the Autonomy of Churches in South Africa (Adacsa) has been admitted as a “friend of the Court” (amicus curiae) in the Gaum vs Dutch Reformed Church (DRC) case which poses a threat to the autonomy of the Church and broader religious community in South Africa.
This important case, which is being heard by the Pretoria High Court on August 21, concerns the 2016 reversal by the DRC Synod of its 2015 decision to remove the celibacy requirement for homosexual ministers and to permit its ministers to solemnise same-sex civil unions (should they so choose).
The applicants are alleging that the 2016 decision should be set aside and corrected by the court due to procedural irregularities. They further allege that the DRC’s decision amounts to unfair discrimination against gay and lesbian people and, for this reason, it is unconstitutional and should be set aside and corrected by the Court.
No religious discretion
Adacsa’s application was triggered by the Commission for Gender Equality (CGE), which has also applied as amicus curiae. The CGE is asking the Court to go even further and to find that no church or religious grouping has any discretion to decide whether or not they solemnise same-sex civil unions/marriages, because to do so would be unfair discrimination from a constitutional point of view.
“We view this intervention by the CGE with deep concern”, said Moss Ntlha, General Secretary of The Evangelical Association of South Africa (Teasa), one of the founder members of Adacsa.
“The position they have adopted potentially challenges the right and ability of each denomination, church or religious grouping to govern their internal affairs according to their own interpretation of their religious doctrine.”
While Adacsa is not adopting a position for, or against, same-sex relationships/marriages, it believes that the CGE’s application represents a severe infringement of the section 15 constitutional right to religious freedom, because it completely undermines the autonomy of the religious community.
Should the court agree with the CGE’s argument, it would effectively mean that churches and religious organisations could be forced to adopt “ideologically biased” doctrinal positions, even if such positions went directly against their religious convictions, beliefs and interpretation of Scripture.
Adacsa recognises that the State can intervene in the affairs of any religious institution to protect vulnerable members from crimes such as physical or sexual abuse of a child, or financial fraud by church officials. However, the constitution guarantees religious institutions a certain degree of institutional autonomy, which is vital to an open, democratic and conscience-honouring society.
The European Court of Human Rights (“ECtHR”) has repeatedly held that “the autonomous existence of religious communities is indispensable for pluralism in a democratic society”.
Likewise, “most democratic nations agree that interfering with religious associations harms, rather than promotes, a democratic society”, says Teresa Conradie of Maphalla Mokate Conradie Inc., who are representing Adacsa in the court application.
“ADACSA is therefore contending that South African law should remain consistent with this position, as well as with the Constitutional Court and the Supreme Court of Appeal’s previous statements to the effect that our courts should not become entangled in determining doctrinal issues, which should fall within the exclusive realm of the Church.”
“Given that the constitution does not recognise a hierarchy of rights and that both sexual orientation and religious freedom have the same status as section 9 ‘equality rights’, where they may appear to be in tension, the Constitutional Court has already stated that the court should seek to accommodate and manage differences of intensely-held world views and lifestyles in a reasonable and fair manner.
The objective of the constitution is to allow different concepts about the nature of human existence to inhabit the same public realm”, says Michael Swain, Executive Director of FOR SA.
“It should never be a ‘winner takes all’ situation where a court suggests that there can be only one acceptable viewpoint with respect to the moral debate regarding the nature of marriage in South Africa.”