Knowledge is the new black.
16 December 2017 10:54 (South Africa)
Opinionista Pierre de Vos

Discrimination: SA’s courts give religious beliefs and practices a free pass

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

Why do religious beliefs and practices – especially the religious beliefs and practices of powerful and dominant religious groups – so often get a free pass from society and the courts? Should certain religious beliefs and practices not be evaluated in the same manner that all other beliefs and practices are evaluated to determine whether they are true and whether they infringe on the rights of others?

Pope Francis, the “infallible” head of the Catholic Church, has been getting some great press recently. Because he has made statements that seem to reflect a sincere and pressing concern for the plight of poor and vulnerable people, because he has embraced the issue of climate change, and because he seems genuinely humble and down to earth, he has received much praise in the mainstream media.

Yet, he heads a church that institutionalises discrimination against women, gay men, lesbians and transgender people. It is unthinkable at present that a woman, an (openly) gay man or lesbian or a transgender person could become pope or could serve in any other role in the top leadership of the Catholic Church.

If the Catholic Church was not a religious organisation but another influential cultural institution (think of Afriforum or the Federasie van Afrikaanse Kultuurverenigning), there would have been widespread condemnation of its catastrophic denial of the basic human dignity of fellow citizens. Its leaders would have been vilified, instead of lauded as progressive visionaries.

Moreover, there would have been little doubt that (in South Africa at least) the Constitutional Court would have declared these practices in breach of the equality clause and would have ordered the institution to stop discriminating against people on the basis of their sex, gender and sexual orientation.

(The Catholic Church and Pope Francis are not alone in this and I do not wish to pick on the institution and its leader – I am merely using it as a handy example. In fact, comparing to his predecessor Pope Francis has indeed expressed views on some matters that will warm the heart of any person concerned about social and economic justice.)

Of course, not all religious beliefs and practices receive such a free pass. If you happen to be a member of a small and relatively powerless religion, the law is likely to take a much harsher view of your beliefs and practices.

For example, Rastafarians are automatically turned into criminals in South Africa for practising their religion (even though this harms no one else) as the law prohibits them from using and possessing cannabis as prescribed by their religion. But because Rastafarianism is a small, unorganised religion and because it is not politically powerful, the criminalisation of these religious practices has remained largely uncontroversial.

But some religious beliefs and practices do get a free pass – both from society and from courts that have to enforce the sometimes conflicting rights contained in the Bill of Rights.

First, this may be the case because many of these religious beliefs and practices mirror the deeply embedded beliefs and practices of the economically and politically powerful in society. For example, in a patriarchal society like South Africa, one in which the lives and feelings of women, gay men, lesbians and transgendered people are not valued to the same degree that the lives and feelings of heterosexual men are valued, it is perhaps not surprising that many religious institutions endorse discrimination against members of the former groups.

It is not possible to disentangle religious beliefs and practices from the political and cultural beliefs and practices dominant in the larger society. Religion and the activities associated with it remain a cultural phenomenon and are entangled with the broader societal culture. It would be naïve to think that religious beliefs do not inform cultural beliefs and practices and vice versa.

As societies change and as the balance of power in a society shifts, these religious beliefs and practices are likely to shift as well.

Thus, before 1994 the Dutch Reformed Church argued that apartheid was necessitated by scripture, until the transition to democracy occurred and the church suddenly changed its mind on these supposedly timeless religious beliefs. Similarly, in societies in which homophobia has decreased drastically many religious institutions have softened their bigotry towards gay men, lesbians and transgendered people – what was viewed as an abomination suddenly became a challenge to be dealt with in the spirit of love and compassion.

It is for the same reason that sections of the Christian Bible are now ignored by all Christian churches. Leviticus 25:44 comes to mind. This section states: “As for your male and female slaves whom you may have – you may acquire male and female slaves from the pagan nations that are around you.” Yet, no Christian church today would argue in favour of slavery.

From a human rights perspective there is a more important reason for giving religious institutions a free pass – even when their beliefs and practices harm members of vulnerable and marginalised groups. The reason is that almost every general human rights instrument contains a provision that guarantees freedom of religion – which includes the right to express religious beliefs and to practice your religion.

The inclusion of such a right has its origins in the view that the religious beliefs and practices of different people should be protected to avoid the oppression or persecution of those whose beliefs do not accord with the majority view. It is also often said that such a right prevents violent conflict and even war as it accommodates religious diversity and serves to defuse tension between people who passionately (and sometimes irrationally) hold on to their religious beliefs and wish to enforce them on others.

Difficult questions arise when there is a direct clash between this right to freedom of religion, on the one hand, and any of the other rights in the Constitution, on the other. Often those who exercise their religious freedom will do so in ways that will infringe on the rights of others by discriminating against or failing to respect the inherent human dignity of others. Although different rights that are at odds can sometimes be accommodated, in some cases the one set of rights will have to yield to the other. In such cases the religious rights of some will either trump or have to yield to the rights of others.

Clearly not all religious beliefs and practices will automatically trump the rights of others. It is unthinkable that a religion which advocates the sacrifice of babies in order to placate the gods will today be allowed to sacrifice babies in the name of freedom of religion.

But why do we assume this as a given? I would guess it is because most of us would assume that the right to life trumps the right to freedom of religion in such a case. The severity of the infringement of the rights of others (nothing can be more severe than being killed) renders baby killing unconscionable. But it will also be because most of us believe that baby killing mandated by god is bizarre and wrong. We would dismiss the value of the belief and would have no qualms in choosing the rights of babies above the rights of what we would think of as religious crazies.

But what happens when the religious beliefs and practices of a religious institution discriminate against individuals based on their sex, gender or sexual orientation? Or when religious people utter hate speech in the name of freely expressing their religious beliefs?

The reason why there is no general agreement on how to answer this question is, first, that individuals do not agree on how severe the impact of a specific religious belief or practice will be on those affected.

If you believe homosexuality is an evil sin, you are probably going to argue that gay men, lesbians and transgender people are not seriously affected by your bigoted religious beliefs and practices – and even if they are it is justified by the greater importance of upholding your religious beliefs.

You are also not going to view said religious beliefs or practices as bizarre, wrong or untrue. Instead, you will probably feel that it is extremely important to uphold such beliefs and practices – to the detriment of homosexuals.

If, however, you do not hold such religious beliefs you will acknowledge the severe impact that the words and deeds of members of a dominant religion could have on a vulnerable and marginalised sexual minority. You will also probably view the particular religious belief or practice as toxic, illogical, bizarre and hence completely untrue and of no value and will have no problem with outlawing the practice and expressing this belief.

Our courts – like courts in other constitutional democracies – have tended to side with the members of dominant and powerful religions against members of vulnerable and marginalised groups. It is for this reason that it seems unlikely that a South African court today will order a church to stop discriminating against women if that church claims the gender discrimination is authorised by God. It is also for this reason that a court may think twice before labelling homophobic speech hate speech – despite the fact that the hate speech provision in the Equality Act does not provide for a religious exception to hate speech.

The interesting conceptual question to ask is whether courts are not better suited to protecting the vulnerable from the powerful than protecting the powerful who act to the detriment of the vulnerable? Should our courts not move away from their bias in favour of religious beliefs and practices in order to better protect those who really need their protection? Should courts not make such beliefs and practices subject to the discipline of other constitutional rights in order to help protect the most vulnerable and marginalised members of society?

However, anybody who has studied the phenomenon of white privilege will know that a privileged group (in this case those who are members of a powerful and dominant religious group) rarely admit to their privilege and are seldom prepared to give up that privilege voluntarily. This means, in the short term, that the debate about whether our courts should continue to give an array of religious beliefs and practices a free pass (to the extreme detriment of women and gays, lesbians and transgender people), is not likely to lead to the more robust legal protection of those on the receiving end of religious prejudice.

This state of affairs is clearly immoral, but until enough people are prepared to challenge the inherent immorality of the beliefs espoused by some religious institutions, there is little likelihood that this injustice will end. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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