Last Friday a full bench of the Pretoria High Court ruled that a 2016 decision by the Dutch Reformed Church (DRC) Synod to reverse its 2015 decision to remove the celibacy requirement for homosexual ministers and to solemnise same-sex civil unions, was both procedurally and constitutionally unlawful.
While technically nothing prevents the DRC from correcting their process, considering the issue afresh and then taking a new decision in this regard, the court’s findings on the substantive/constitutional aspects of this case may well have painted the DRC into a corner and make it very difficult for them to reach a different decision, says Freedom of Religion SA (FOR SA) in a media release today.
This is because, in terms of the judgment, “allowing the LGBTIQA+ community to be members of the church, but excluding them from leadership positions and from a marriage ceremony” amounts to unfair discrimination and is unconstitutional, says FOR SA.
The controversial case of Gaum v Dutch Reformed Church was launched by DRC minister Laurie Gaum, his father, Frits Gaum, and eight other members of the church, all of whom advocate for LGBT issues and sought to have the synod’s 2016 decision ruled unconstitutional.
Severe threat to religious freedom
Commenting on the judgment, FOR SA Executive Director Michael Swain, says: “Although the court’s findings on the procedural aspects are not surprising, the findings on the constitutional aspects are very concerning from a religious freedom point of view and pose a severe threat to the institutional autonomy of churches and religious groupings.”
In this regard, he points out that despite the fact that the High Court acknowledged the “doctrine of entanglement” — which establishes that courts should as far as possible refrain from interfering in doctrinal disputes of a religious character — in this instance the court did exactly that and thus radically departed from established South African and international law.
The major question is how does this judgment affect denominations, churches and faith groups outside the DRC? In this regard, FOR SA points out that while it is possible that the judgment may affect churches that (similar to the DRC) allow homosexual people to be members of the church but deny them the full benefits of membership, ultimately the judgment is case specific and therefore does not universally apply to all churches and denominations in South Africa.
“The judgment does not go so far as to force all churches and religious groupings to marry same-sex couples, which the Commission for Gender Equality (CGE) unsuccessfully tried to argue,” says Michael Swain. “The judgment does however set a dangerous precedent. When the state starts telling society (including the church) how they should think and believe, we may find ourselves on a dangerous path towards totalitarianism.”
Appeal decision awaited
The DRC, which has three weeks from the date of judgment to apply for leave to appeal the judgment to the Supreme Court of Appeal (SCA), says it will first have to study the judgment in humility.
Philip Rosenthal of ChristianView Network, says the Pretoria High Court has overstepped its authority and “fundamentally misunderstands the purpose of the Bill of Rights in general and the Equality clause in particular [in the SA Constitution]” and threatens all religious freedom in South Africa.
“It is absurd for the court to expect a church to allow teachers and ceremonies, which its policies explicitly and lawfully teach against. The North Gauteng High Court thus appears to be just bullying the NGK in the hope they will not appeal. The NGK have 15 days to decide to appeal.
“We hope they do. But even if they don’t, other churches can apply to have the judgement rescinded, but this must be done soon afterwards. Or otherwise, we can wait defensively for the next attack to come,” he says.