Constitutional Court to hear lesbian minister’s case in August

Watershed case for religious freedom and church autonomy

Originally published in For SA

On August 27, 2015, the Constitutional Court will hear Ecclesia de Lange’s application for leave to appeal against the decision of the Supreme Court of Appeal (SCA) in September last year. In that decision, the SCA refused to determine whether the Methodist Church in SA did, or did not, have a rule prohibiting same-sex marriage. According to the SCA, the internal rules of the church should be left to the church to be settled domestically and without interference of the Court. (For more information about the actual findings before the SCA, click here – https://gatewaynews.co.za/sca-rules-in-favour-of-religious-rights-church-autonomy-in-gay-minister-ousting-appeal/ ).

Should the Constitutional Court grant leave to appeal, De Lange will then, on another date, have to argue why the SCA’s decision should be overturned i.e. why the Constitutional Court should:

• Interfere in the internal doctrinal disputes of the Church;
• Find that the Methodist Church has no rule prohibiting same-sex unions; and
• Find that the Methodist Church unfairly discriminated against her on the ground of sexual orientation, when it discontinued her services as ordained Minister of the Methodist Church following her announcement to the Church that she intended to “marry” her same-sex partner.

Should leave to appeal be granted, Freedom of Religion South Africa (FOR SA) will in all probability intervene as a “Friend of the Court”, in order to protect religious freedom and the autonomy of the Church in South Africa to govern her own affairs – of which there will be very little left should De Lange’s appeal be upheld.

Should her appeal succeed, we believe this would effectively open the door to the persecution of Christians, who are now the most persecuted group around the world, in South Africa. Christians choosing to obey God when forced to choose between obedience to God or the State, must know that they will suffer consequence in the form of fines and/or imprisonment – as is already happening in other countries in the West.

The application for leave to appeal
In her application for leave to appeal (on August 27), De Lange will have to persuade the Constitutional Court that there are reasonable prospects that the Constitutional Court, when faced with the same facts and arguments that were before the SCA, will come to a materially different decision to the SCA.

The Methodist Church opposes De Lange’s application for leave to appeal, on the basis that she has raised new issues before the Constitutional Court rather than arguing the case that was before the SCA. They argue that, already when the matter was before the Cape High Court, De Lange expressly disavowed any challenge to the constitutionality of a rule precluding Methodists from entering into same-sex marriages. The dispute is therefore a narrow one: De Lange argues the Church has no rule prohibiting same-sex marriage and that in the absence of such a rule, the Church’s decision to discipline her was unconstitutional. The Church, on the other hand, argues there is such a rule which arose from practice and church usage, and that De Lange had breached it.

In relation to the application for leave to appeal, the Constitutional Court has already directed the Methodist Church to file papers on whether the Methodist Church has a rule proscribing same-sex marriage and if so, whether such a rule is consistent with the Constitution.

It is thus clear that, already at this preliminary stage, the Constitutional Court is crossing what has been a sacred line up to now and putting the Church in a position where it has to defend its doctrinal beliefs against the Constitution.

Implications of the case for religious freedom
Should De Lange’s application for leave to appeal be successful and should she thereafter also succeed on appeal, the consequences for religious freedom and the autonomy of the Church to govern her own affairs will be dire.

Practically, it means that the Methodist Church (and also all other churches who only recognise heterosexual marriages) will be forced to:

• Employ and/or retain in their employ, ministers (and, by parity of reasoning, other staff) who practice homosexuality, and will not be allowed to apply church discipline or terminate their employment for acting contrary to church doctrine;
• Accept and/or retain as members, persons who practice homosexuality, and will not be allowed to apply church discipline or terminate their membership for acting contrary to church doctrine; even if to do so, would violate the conscience, religion and belief of the Church and its members.

It would mean that churches would no longer be free to believe and preach that, according to the Bible:

• Marriage is the sacred union between one man and one woman;
• The practicing of homosexuality, is sinful before God and therefore forbidden;

as to do so would amount to unfair discrimination and potentially also to “hate speech”.

A further likely consequence of an adverse finding against the Methodist Church, is that churches will be forced to make their facilities available for same-sex ceremonies – again, as refusal to do so, would amount to unfair discrimination on the basis of sexual orientation.

This is a slippery slope that will open the door to the Courts effectively:

• Telling the Church how to govern her affairs;
• Dictating what the Church (and therefore, also its members) may and may not believe, and may and may not preach – what is acceptable, and what is not. This censoring of “offensive” Bible scriptures is already happening elsewhere in the West.;  and
• Forcing the Church (including pastors and members) to act against their conscience, religion and belief.

This will no doubt have a spill-over effect to Christian ministries, schools and businesses (including for e.g. Christian guesthouses, wedding venues, florists, bakers and photographers whose Biblical conviction and belief forbid them from participating in same-sex wedding ceremonies), who likewise will have to face the choice of:

• Complying and in the result, compromise on their religious convictions and beliefs;  or
• Not complying and in the result, suffering the legal consequences (in the form of financial penalties and/or imprisonment).

Conclusion
The Ecclesia de Lange v Methodist Church of SA case will be a watershed court case for religious freedom and the autonomy of the Church in South Africa.

Depending on what happens with the application for leave to appeal, the Church in South Africa may have to rally and join forces with the Methodist Church, to protect our freedoms and prevent the State from crossing a sacred line.

In this regard, we echo the following statement by the Methodist Church in their application for leave to appeal:

“The Church needs to be allowed by society to live by its morality, and cannot be forced to follow contemporary culture, against its conscience”.