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.
“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.
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.
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”.