In a major victory for religious rights and the autonomy of the Church in South Africa, the Supreme Court of Appeal (SCA) this week held that “… a proper respect for freedom of religion precludes our courts from pronouncing on matters of religious doctrine, which fall within the exclusive realm of the Church”. (Ecclesia de Lange v The Presiding Bishop of the Methodist Church of Southern Africa for the Time Being & Another).
According to the SCA, the determination of who is morally and religiously fit to conduct pastoral duties or who should be excluded for non-conformity with the dictates of the religion, fall within the core of religious functions. As such, the matter should be left for determination by the church domestically and without interference by a court.
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“A court should only become involved in a dispute where it is strictly necessary for it to do so. Even then, it should refrain from determining doctrinal issues in order to avoid entanglement”, said Judge Ponnan who delivered the judgment on behalf of the five Judges of Appeal who were all in agreement on the judgment albeit for different reasons.
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The facts
In 2006, Reverend Ecclesia de Lange (“De Lange”) was ordained as a Minister and received into the full Connexion of the Methodist Church of Southern Africa (“the Church”). During a combined church service of the two congregations in which she was serving, De Lange in December 2009 announced that she would be getting married to her same-sex partner later that month, as she subsequently did. (De Lange has subsequently divorced her partner but is set to marry again.)
Following De Lange’s unexpected announcement, the Church suspended De Lange from the Ministry pending the holding of a disciplinary hearing. At the disciplinary hearing, De Lange was found to have breached the Church’s internal policy, practice and usage to recognise only heterosexual marriages, by announcing her intended marriage to a same-sex partner and especially by doing this without consultation with the Superintendent and Bishop of the Church. This decision was confirmed on internal appeal, where it was ordered that De Lange “be discontinued from the Ministry of the Church”. The effect was that De Lange remained an ordained Minister but was precluded from exercising any ministerial functions, holding any station or receiving any emoluments.
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De Lange subsequently referred the matter for arbitration in terms of the rules of the Church. While the arbitration was still underway however, De Lange decided to institute legal proceedings in the Western Cape High Court instead. In the High Court, Judge Veldhuizen concluded that De Lange’s application to Court was “premature and that she should first submit to arbitration”. The High Court accordingly dismissed De Lange’s application, but granted her leave to appeal to the SCA as she then did.
On appeal to the SCA, De Lange asked the Court to:
- Set aside the arbitration agreement with the Church, alternatively declare that it was no longer effective;
- Declare that the Church’s decision to discontinue her as Minister of the Church, was unconstitutional and unfair discrimination based on sexual orientation;
- Review and set aside the Church’s decision first to suspend and therafter to discontinue her as Minister; and
- Reinstate her as a Minister of the Church with retrospective effect.
The Court’s decision
In so far as De Lange asked the SCA to declare that she had been unfairly discriminated against, the SCA held that De Lange had failed to lay a factual basis in support of this claim in her papers before the Court and in fact, had expressly abandoned this claim. The Court thus did not have to decide this issue. As a result, it was not necessary for the court to “engage with the collision between the rights to freedom of association and religious freedom on the one hand, and the right to equality on the other”.
Turning then to the question of whether there was a good reason to set the arbitration agreement aside (and approach the Court for a ruling on the matter instead), the SCA essentially found that:
- A valid arbitration agreement had been concluded between the parties, and that they should be bound thereby;
- Arbitration would not be a futile process, as argued by De Lange. The only issue that had to be determined, was whether the Church had a rule in place that precluded De Lange from announcing her intention to marry from the pulpit. The Church contended that there was such a rule, whereas De Lange contended that there was not. Put differently, the arbitrator was called upon to determine whether the Church’s disciplinary (and appeal) committees had acted correctly in finding that De Lange had breached the Church’s policies, decisions, practices and usages. The SCA found that there was no reason why this issue could not be determined through arbitration proceedings;
- The court should be reluctant to become involved in doctrinal disputes of a religious character. This “hands-off” approach is also consistent with the approach of the courts in the US, the UK, Australia and Canada. In this regard, the SCA stated as follows: “It is so that our Constitution protects an individual’s rights to practise his or her religion as well as the rights of members of a particular religion to practise that religion in association with others and in conformity with the dictates, precepts, ethical standards and moral discipline which that faith exacts. Protecting the autonomy of religious associations is considered a central aspect of protecting religious rights. Indeed such protection has been described as ‘vital to a conscience-honouring social order’. As the Constitutional Court held in Minister of Home Affairs v Fourie (Doctors for Life International & others, amici curiae); Lesbian and Gay Equality Project v Minister of Home Affairs 2006 (1) SA 524 (CC) para 94: ‘In the open and democratic society contemplated by the Constitution there must be mutually respectful co-existence between the secular and the sacred. The function of the Court is to recognise the sphere which each inhabits, not to force the one into the sphere of the other.’ “
The SCA accordingly dismissed De Lange’s appeal.
Following the judgment, De Lange is reported to have said that she was considering her position which may include an appeal to the Constitutional Court.
A helpful legal precedent
Commenting on the judgment, Andrew Selley (CEO & Founder of FOR SA) stated as follows: “This is a huge victory for religious freedom and the autonomy of the Church in South Africa. The judgment affirms what FOR SA as an organisation stands and fights for, namely the freedom of the Church to be the Church: to govern her internal affairs and to determine and live out her doctrines and beliefs according to her interpretation of the Bible and without interference by the State. We really thank God for this victory! The legal precedent (of non-interference in religious matters) established by the SCA will help us greatly in the many other cases that the Church is facing in our country.”
For more information about Freedom of Religion South Africa (FOR SA), see www.forsa.org.za . FOR SA can also be followed on Facebook at “Freedom of Religion SA”.
I believe its good for one to be removed most specifically in Church service if she isn’t willing to do away with practise of homosexual life style this is a deep embedded type of sin with negative spiritual implications to other people we are not as a society most specifically God based word believing interested in being judged by God through raising a homosexual society I’m saying this with love mixed with expensive grace we received through Christ that she must be removed from serving the church she is not fit to lead people . In closing we are so blinded to understand that evil can be personified so we need sharp eyes even if its something one born with n recognise it so n bring it to God for correction they are many demons that are personified so that they find a safe legal protection understand me I’m not speaking to personally attack but I adress demon as one and evil as one with all humility I’m saying this we all need to have a relationship with God to see and understand such things . The legal system is very blind when it comes to matters like these they look to where they are not suppose to !
The word “homosexual” is a mistranslation from the word “malakoi” Greek meaning bed-boy. What most people don’t understand is that “homosexual” or “gay” people as they are more commonly known as today , are born this way, this is who they are part of their DNA and makeup its not all about perversion as some may perceive. I am merely stating facts and truth. Once people get this our views will change.
Patrick, I’m sorry but the misconception that people are born gay is a lie. There is no gay gene. God created man and woman to be together. It is instead your freewill to choose if you sleep with someone of the same sex. But it is also in that choice that you accept the consequences of your actions. This is not a matter of whether man thinks its ok to be gay, its that God has said that it isn’t. In that, if someone chooses to sleep with the same sex, they are rejecting God, and as the Bible is very clear on, (Mathew 10:33 ” whoever denies me before men, I will also deny him before my Father which is in heaven.” Finding one being attracted to someone of the same sex stems from many manipulated emotions, but at its core it is the sin within the body that corrupts our viewpoint. Lust is not the same as love, and having the desire to sleep with someone of the same sex is lust driven.
Patrick, the lie that there is a gay gene is perpetuated in the same way that Haeckel’s embryos, which was exposed over a century ago, is still used as “proof” of Darwin’s theory. Even if you WERE born that way, God clearly says that people turning away from Him will be given over to their shameful lusts and burn with desire for people of their own sex. Practise homosexuality, and the Bible warns ypu that you WILL NOT INHERIT ETERNAL LIFE! There is no doubt about that. Just turn back to God, instead of defending what God calls an abomination. You will be punished for each person you lead astray with your arguments. For your own good I urge you to accept God’s Word without challenging or distorting it. It will be better to find another (ie a false) religious group that accept such behaviour, rather than to corrupt the Word of God. I pray that you will accept God’s Word as the final Word. You can condemn me and detest what I say, but if I keep quiet it implies that I allow the lie to destroy your ETERNAL LIFE!!! I pray for the truth to prevail.
There is no proof that there is a gay gene… Even the homosexuals have left that argument and is standing by the point that it is their right to what they want to.
Homosexuality is the the new totalitarianism – infringing on others freedom in the name of freedom. Just look what they have done in the USA –
“1. legislation that flat out prohibits counseling help for minors who want to overcome unwanted same-sex attractions
2. the prosecution and criminalization of ever-larger numbers of Christian business people for simply declining to promote
homosexuality on moral and religious grounds
3. the new California law decreeing that boys must be allowed to use girls’ restrooms and locker rooms if they identify with the
opposite sex, and vice versa
4. forced integration of open homosexuals into the military
5. the imposition on the nation of homosexual marriage.”
They make as if they are the victims yet they are dominating others.
The Homosexual lobby is militant and has no space for leniency towards others beliefs and yet demand it from us.
There is much money behind their agenda and they are being supported by those who want to exercise greater population control. Simply because homosexuals can not procreate and are 44 times more likely to contract HIV Aids.
Hi Patrick,
With a lot of love and concern for your soul (without judgement)I must tell you that it is not the word you call a relationship between the same sex that is important. What is in question is that God loves them, but HATES what they do!
The WORD OF GOD is quite clear in Romans 1:18 to 27 tells it quite clearly. They are not born that way, because God would not create a person like that and then condemn the person. There is only one name for that – SIN! Nowadays is called “freedom of choice”… But the Grace of God covers that if the person is willing to change. I have seen that happening. May the Word of God and His Grace touch you and show you the truth so that you can help those people when they cross your way. That is the way you can love them, by saving their soles from Hell.
God is quite clear when He says that people that practice sex immorality will not see the Kingdom of God.
Wow ! Exactly which Bible does this woman read ???
I find this quiet unusual as I know of several same-sex couples married by methodist ministers. The Methodist church of SA usually welcomes ALL people (gay, straight whatever) in a loving and grace-filled non-judgemental manner. the biggest problem is this word “Homosexual” which does not even appear in early scriptures until the late 1800s. same sex attraction has always been around and always will be.It’s time the church (leadership / heirachy structure) and the everyday layman stop judging each other and let God do what He wants to do in the hearts of His true believers. One’s sexual orientation is between God and that person. Love is the answer
“let God do what He wants to do”
He has already – the Word He gave us is very clear on the matter of judging homosexuality. God has judged it and found it unacceptable by design.
This is such a great victory, especially for the Methodist church, which has been heavily at risk of abandoning the faith that is based on the sovereign Word of God. Without the Word, the church is just a culture club.
I believe we need to honestly understand that creation must be preserved the way God intended it to be it is stated even in the old testament that homosexuality is an abomination its a demon that tries to say God missed something out in creation of men and woman its a devils way of undermining God and His word . If we are real christian who mean business with God we better pray and stop playing games in church because the devil is right at the doorstep of the church , real gospel of Jesus Christ welcomes all sinners homosexuals too BUT THEY HAVE TO ALLOW God to CHANGE them . There is nothing like a men trapped in a female body its demonic it needs us to pray for God to correct it and also help too those who accept that lifestyle as normal they need to read their bibles under the illumination of the real Spirit of God we can’t allow education to make us foolish to an extent that we loose simplicity of diferentiating between Holy and unholy ! Human and a demon trying to take hold of a human soul ! Let him who has an ear hear when the real Spirit of the Living God is speaking to us !
Patrick, you are correct that the word homosexual only occurs in the modern translations of the Bible. However, the problem is not with the word, homosexual, but with the practice, which is clearly described in Romans 1:26-27 (NIV):
Because of this, God gave them over to shameful lusts. Even their women exchanged natural relations for unnatural ones. In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion.
Well done to the Methodist Church for standing their ground on this issue.
I find it relevant that Rev de Lange has already divorced her first partner and is set to ‘marry’ again.
Patrick, I agree with you that we should be loving and grace-filled.But grace is not tolerant, non-judgmental of sin. “The grace of God brings salvation (from sin Matt 1:21) and trains us to renounce ungodliness and worldly passions and to live self-controlled, upright and godly lives in this present age …”. (Titus 2:11). Homosexuals are born with the sinful lust for those of the same sex, Heterosexuals are born with the sinful lust for those of the opposite sex – hence fornication and adultery are common. That’s one reason why God instituted Marriage as soon as there were two genders were created (Gen 2:24; 1 Cor 7:1,2). The Holy Spirit gives self-control (Gal 5:9-24), though empirically the common grace of God also enables self-controlled celibacy without the new birth. There is no specific gay gene, but we are all born with a bias to sin in its many forms.(Romans 5:12)
God is among us – be slow to speak , listen deeply, if you must speak do so in love
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