Last week, Gateway News reported on the legal proceedings instituted by a gay couple (now legally represented by the SA Human Rights Commission) against Steph and Marina Neethling, Christian owners of a guesthouse in Wolseley, in the Equality Court of Bellville.
At the directions hearing this week (on Monday, April 14, 2014), the Court postponed the matter for hearing on June 17, 2014. On that day, the parties will present legal argument with regard to the difficult question the Court has to decide, namely which fundamental right to protect in the current instance: the gay couple’s right not to be discriminated against on the basis of sexual orientation, or the Christian owners’ right to freedom of conscience.
Importance of case
The importance of this case – not only for the guesthouse owners but for all Christians and in particular Christian business owners in South Africa – cannot be over-emphasised. Moss Ntlha, who has now joined Andrew Selley as a leader within FOR SA (Freedom of Religion SA), explains the practical effect as follows: “This case will decide how free (or not) Christians in South Africa really are to obey the Word of God in their everyday lives.”
Given the importance of this case for all Christians and given also the fact that the owners of the guesthouse have felt to conduct the case on their own, FOR SA on Monday asked the Court for permission to intervene in the case as an amicus curiae (“friend of the court”), and was granted permission. As amicus curiae, FOR SA will be able to present legal argument to the Court in an effort to assist and guide the Court with regard to the constitutional issues and balancing of competing rights.
As Legal Counsel speaking on behalf of FOR SA, Advocate Nadene Badenhorst says that “while our Constitution recognises the right not to be unfairly discriminated against on the basis of sexual orientation as a fundamental right worthy of protection, the same Constitution entrenches the right to freedom of conscience, religion and belief as a fundamental right to be respected, protected and promoted by the State. Our Constitution does not have a hierarchy of rights and to suggest (as the Human Rights Commission as well as advocates of gay rights continue to do) that sexual orientation rights will or should always trump religious rights, is incorrect and unconstitutional.”
The current dispute before the Equality Court arose when the owners of the guesthouse informed the gay couple that their guesthouse is not ‘gay friendly’ and politely referred them to a ‘gay friendly’ guesthouse in Wolseley instead.
The gay couple contends that the owners’ conduct violated their right to equality as “sexual orientation, like our skin colour or belief system, is not a basis for discrimination”. As a result of their alleged humiliation and emotional scarring, the gay couple claims an unconditional and sincere apology from the owners; that the owners pay a fine and the money be donated to Pride Shelter Cape Town; and that they be prevented from discriminating against gay people in future.
The owners, on the other hand, contend that just as they respect the couple’s choice (to be gay), they expect the couple to respect their choice (in terms of how they run their business). As owners, their choice is to follow God’s Word and not to knowingly allow or enable guests to commit sin on their property. For this reason, they also do not allow unmarried couples to sleep together in the same room, or allow drunkenness or prostitution on the property.
With regard to the issues that the Equality Court will have to decide in this case, Advocate Badenhorst explains that the owners’ decision to turn the couple away as a result of their sexual orientation, does not automatically make them guilty of “unfair discrimination”. Even if the court were to find that the gay couple was “discriminated” against on the basis of sexual orientation, it still has to be proven that the discrimination was “unfair” taking into account a number of factors, including but not limited to the intention of the guesthouse owners and the purpose of the discrimination.
In the present instance, the intention of the guesthouse owners was not directed at impairing the dignity of the gay couple. While the gay couple may dislike the owners’ decision and feel hurt because of it, it does not necessarily mean that the owners were legally in the wrong. Likewise, even if the Court were to find that the owners discriminated against the gay couple, the Court still has to have regard to their reason for doing so, namely that their moral conscience would not allow them to do otherwise.
In this regard, a distinction has to be drawn between “discrimination” and “participation”. By way of example, while there can be no moral or legal justification for a Christian refusing to serve a gay couple a meal in a restaurant (and to do so, would generally amount to “unfair discrimination”), the same does not necessarily hold true in the case where a Christian refuses to make a room available to a couple practicing homosexuality; or refuses to make a wedding venue available for, or bake a wedding cake or take photographs in celebration of, a homosexual “marriage”.
In the case of serving a gay couple in a restaurant, the Christian is not asked to participate in any sinful activity, does not violate his conscience and can therefore have no moral or legal objection to preparing the meal. In the case however where the Christian is asked to be involved in the arrangements for a gay wedding (by providing the wedding venue, baking the wedding cake or taking the wedding photos), the Christian may feel that he is participating in or celebrating something that goes against the Word of God and which would therefore violate his conscience if he were to do so. To explain: It is a central tenet of the Christian faith that marriage is a covenant, a sacred bond between a man and a woman instituted by and entered into before God (Gen 2:24). The Bible also uses this picture of marriage between a man and a woman, to explain the sacred relationship between Christ and His church (Eph 5:21 – 33). For this reason gay marriage, while legal in South Africa, is understood by Christians as contrary to God’s Word and offensive to Christ’s picture of His relationship with us. The Bible also specifically forbids the practice of homosexuality (1 Corinthians 6:9). To expect or force a Christian therefore to help a gay couple to get married (by providing the wedding venue, baking the wedding cake or taking the wedding photos), is really expecting or forcing the Christian to help the gay couple to do something that grieves God and thereby, to himself grieve God.
Likewise, to expect or force a Christian to make a room available to a gay couple who is likely to have same-sex intercourse in the room, is to expect or force the Christian to help the couple practice homosexuality and sin against God. Again, this may make the Christian himself a participant in the sin and in this way, violate his conscience. For this reason, the Christian’s conscience should be legally protected in such instance, for to do otherwise may be to expect or force the Christian to place his own salvation at risk.
Speaking on behalf of FOR SA, Founder and CEO Andrew Selley asks Christians to intentionally pray for this watershed case and in particular, for the owners of the guesthouse who are directly involved. Referencing Romans 14, he appeals to Christians not to condemn the guesthouse owners for having followed their convictions and having done what they believed to be right before God, even if they themselves would have dealt with the situation differently and would not have turned the gay couple away. “While as Christians we may hold to different convictions of the faith, we can agree on this: It is not for the State to prescribe what our conviction should be.”
Against this background, FOR SA calls upon Christians to unite in prayer and in action to defend our religious freedom and our liberty to hold to Christian convictions and act according to our conscience.