By Freedom of Religion South Africa (FOR SA)
On Tuesday August 21 the long-awaited case of Gaum vs Dutch Reformed Church of South Africa (“the DRC”) was finally heard by a full bench (Judges Raulinga, Potterill and Molefe) of the Pretoria High Court.
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The judges heard a full day of argument by the various counsel for the applicants (LGBT members of the DRC), the respondents (the DRC), the Commission for Gender Equality (“CGE” – the first amicus curiae in the matter), the Minister of Home Affairs and the Alliance Defending the Autonomy of Churches in South Africa (“ADACSA” — the second amicus curiae in the matter).
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The Court reserved judgment, which could take a while to come out.
While it is difficult to say – and only time will tell – which way the court will lean, it is very possible that in any event this will not the end of the road because the losing party will likely consider an appeal to a higher court.
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On behalf of FOR SA, we extend our sincere gratitude to everyone who prayed for the case and in particular, for Adv Reg Willis (Chairperson of Christian Lawyers Association) and Adv Nadene Badenhorst (Legal Counsel for FOR SA) who appeared on behalf of ADACSA.
This is a very important case that can have severe implications for the autonomy of all churches and religious groups in South Africa.
Arguments made in court
The case before the court, concerned the 2016 decision by the Dutch Reformed Church (“DRC”) Synod, to reverse its 2015 decision removing the celibacy requirement for homosexual ministers and permitting its ministers to solemnise same-sex civil unions (should they so choose).
At the hearing, counsel for the various parties presented legal technical arguments on why the 2016 decision – both from a procedural, and a substantive / constitutional, point of view – should, or should not, stand.
Adv Jeremy Gauntlett SC, appearing for the applicants, had first opportunity to address the court and argued that the church’s decision falls foul of various provisions of the Promotion of Administrative Justice Act, 2000 (PAJA) — which essentially provides that “administrative decisions” should be taken in a manner that is procedurally fair – and should for this reason be set aside.
In turning to deal with the constitutionality of the 2016 decision, he argued that the church cannot “privatise” discrimination and that “if it holds good for race and for gender, then it should hold good for sexual orientation”.
He also sought to liken the DRC with the Mancoba Seven Angels cult, arguing that just as the cult cannot hide behind “freedom of religion” to justify the (illegal) keeping of sex slaves, the DRC cannot rely on “freedom of religion” to justify its “illegal discrimination”.
In a short address thereafter, counsel for the CGE (as first amicus curiae), referred the court to the CGE’s written submissions. These submissions essentially argued that a constitutionally-compliant interpretation of the Civil Union Act, 2006 does not allow churches a discretion whether or not to solemnise same-sex unions. If a church solemnises heterosexual marriages, it must also solemnise same-sex unions. (Not much was made of the CGE’s submissions during the hearing however).
Next, the counsel for the Minister of Home Affairs, took the stand and briefly addressed the court on why the CGE’s application for admission as amicus curiae, from a legal technical point of view, was problematic.
Shortly before lunch, Adv Schalk Burger SC started argument for the church. Dealing firstly with the procedural aspects of the 2016 decision, Adv Burger argued that PAJA does not apply to the church’s decision, which was not “administrative action” for purposes of the Act.
Turning to the substantive / constitutional issues, Burger argued that while it is correct that the DRC’s decision discriminates on grounds of sexual orientation, the constitutional prohibition is against unfair discrimination. In this instance, the decision is not unfair because the Constitutional Court in the case of Minister of Home Affairs v Fourie (which legalised same-sex marriage in 2005) specifically held that the legalisation of same-sex marriage does not mean that religious organisations are now obliged to celebrate marriages not conforming to their beliefs.
In conclusion, Burger pointed out that if the court were to find that the DRC’s decision amounts to unfair discrimination, it will have repercussions throughout the religious society, and that “more churches would be upset than just the DRC”.
Finally, Adv Reg Wills (appearing with FOR SA’s Adv Nadene Badenhorst) had opportunity to make brief submissions to the Court on behalf of ADACSA (the second amicus curiae).
ADACSA referred the court to international and foreign law, which jealously guard the autonomy of churches to determine their own doctrines free from interference by the state or anyone else. Contrary to what had been suggested by Gauntlett (for the applicants), the issue before the court is squarely doctrinal. As such, the doctrine of entanglement – which prohibits the court from getting involved in doctrinal matters – must apply.
Potential impact on other churches / religious groups
The outcome of this case – both from a procedural, and a substantive / constitutional – point of view, will be important for all churches and religious groups in South Africa. From a procedural point of view, should the court find (as argued by the applicants) that PAJA applies, courts would henceforth have the power to measure the procedural fairness of church decisions against both the church’s own regulations, process and procedures as well as the requirements which apply to decisions made by persons or institutions which have a public function or exercise a public power. This would set a completely new precedent.
From a substantive / constitutional point of view, should the court find (as argued for by the applicants) that the DRC’s decision amounts to unfair discrimination against LGBT people, the decision would effectively set a precedent for each and every other church / religious group who are unable – on grounds of their religious belief – to solemnise same-sex unions.
Furthermore, the decision would set a precedent for the courts to interfere with any doctrinal belief of any church or religious group. While the State does have the right to interfere to – for example – protect vulnerable members from readily discernible, serious harm (for example, physical or sexual abuse of a child, or financial fraud by church officials) – it should emphatically not interfere to support “politically correct” viewpoints which the religious community rejects.
The decision of the court has greater importance in the context of the recent proposal by COPE MP Deirdre Carter to remove the “conscientious objections clause” (in terms of which state-employed marriage officers have the right to refuse — on grounds of their conscience, religion and belief – to solemnise same-sex unions), from the Civil Union Act, 2006.
Should the court find that churches / religious marriage officers must – potentially against their conscience, religion and belief – solemnise same-sex marriages, it is difficult to see how the conscience of state-employed marriage officers would remain protected.
For more information about ADACSA, or to join the Alliance, please contact Teresa Conradie at Maphalla Mokate Conradie Inc on 012 369 6200 or Teresac@motcon.co.za
As a gay christian my partner and I are praying daily that the ruling runs in in our favour allowing us to be married under the guidance of Jesus and the Lord above. Pray for us as we would like to start a family and our children would be brought up in a Christian environment. Praise the Lord
Our dear Lord Jesus said The word of God is the truth. I pray you find the real Jesus.
That is awesome Joy. I pray you are able to start your family when the time is right for you. I am sure you both are loving parents and you have your heart in the right place. Well done. With so many broken homes resulting in broken children, the world needs more people like you, and I am sure you would offer a safe warm and loving space for a child to grow up in that is what matters.
It is fallacious to compare race/gender with sexual orientation. No-one can change their race or sex, but there are many instances of people changing their sexual orientation. Race and Sex are genetic, there is no proof of a sexual orientation gene. To Joy we say lovingly: You cannot have same-sex procreation. Even Evolution insists that procreation is a necessary criterion for Evolution; without it the species dies out. God Creation revelation likewise teaches that God’s image in humanity is male-female, with the mandate to multiply.
The human race will never die out. This should be the least of our worries. There are more than enough hetrosexual people on the earth to keep pro creating. So please stop worrying about something that will never happen and fix your eyes on Jesus.
All I ask as a Christian Believer is “ Which pages do you want me to tear out of my Bible, considering what is the very last message given to a Christian but the Lord Jesus and written in Revelations 22 from verse 18
Do some research none of the early translations use the word homosexual – only male prostitutes or arsenekoi (Greek). People who use scripture that use the modern word homosexual which only came into our dictionary by the way in the late 1800s are using clobber texts out of context to promote hateful prejudice slander and hatred against LGBTI people. We are not called to judge anyone that is between the Lord and the individual. We as the church have caused so much unnecessary hate and anger towards people who do not fit into our mold. Jesus himself never once condemned people with a same sex attraction. Not worth the argument. We need to dig deeper into the word, look at the context, culture and setting. And everything should operate from a place of the love of Christ in our hearts.
I am going to say the following from my heart. Truth is love. The question here is that some confused Christians, compounded by the support of ‘trolls’ is asking for the right to stand before Almighty God in His sanctuary i.e. the Church, and ask for His blessing to commit sexual abomination.” This is an absolute insult to God. The Bible (God’s Word) only supports two genders, male and female. Further, Science only supports two genders. Marriage in the eyes of God is a Sacrament. Marriage in the Church is between three parties. i.e. Man, woman and God. So lets not offend God by insisting on our selfishness to fulfill our self gratification. If you want to have a modern, abnormal family, then by all means go ahead and get your ‘marriage certificate’ from the courts, and may you fulfill all ‘your’ loving needs in such a union. I say to all you believing Christians, “Study the Scriptures diligently and I suggest you start with 2 Timothy and pray for the Holy Spirit to enlighten you with the Truth” God bless you all.
The DRC HAS PUT THE CHURCH OF CHRIST UNDER DISREPUTE AND WILL REAP WHAT THEY SOW BY TAKING A COMPROMISING STAND INSTEAD OF UPHOLDING A BIBLICAL WORLDVIEW IN THE BEGINNING. THIS HAS OPENED THE DOOR FOR THIS COURT-CASE.SOMETIMES LEADERS FORGET WHO THEY REPRESENT AS AMBASSEDERS FOR CHRIST.