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A court order that protects members of the LGBT community is obviously to be welcomed. But the recent judgment against the Dutch Reformed Church is not without its own incoherencies, writes Serjeant at the Bar.
In 2015 the Dutch Reformed Church (NG Kerk)
through its General Synod passed a resolution to the effect that ministers
within the church could officiate at same sex civil unions and simultaneously
dispensing with the requirement that ministers who were gay or lesbian had to
be celibate to remain in their positions.
In 2016 the General Synod reversed this
position which decision gave rise to an application by Louis Gaum and others to
the High Court Gauteng to set aside the 2016 decision on the basis of breaches
of the Constitution.
This is tricky legal territory, often
referred to by legal scholars as the doctrine of entanglement which represents
the idea that secular courts should not become entangled with religious
doctrine or internal governance of a religious institution.
Viewed within the context of the Constitution
the dispute turns on the need for a secular court to deal with the collision
between the right to free association and religious freedom on the one hand and
equality and non-discrimination on the other. The doctrine of entanglement
cautions a court from becoming involved in disputes which turn on religious
In this case, a full bench of the High
Court placed considerable emphasis on the contrasting resolutions in 2015 and
2016 which, in its view, was indicative of serious difference of opinion within
This appeared to embolden the court for,
although it stated that "acceptance of same sex unions by religious
associations raise controversial and sensitive points", it proceeded to deal
with Gaum's application on the basis that the 2016 resolution was in breach of
the constitutional guarantee of equality.
The premise that appeared to ground the
decision of the court was that "the sacred is forced into the secular when
there is prejudice to basic rights contained in the Bill of Rights". The
court found that there was unfair discrimination of Gaum and the balance of the
affected applicants as there was no supporting evidence of fairness in which
case, the possible trenching on religious questions notwithstanding, the
supreme law, the Constitution, had to be upheld.
In summary, the court found that Gaum and
his fellow applicants as a minority (being part of the LGBT community) had
suffered severely as a consequence of the 2016 decision of the General Synod.
By contrast, the church had not put up any
evidence before the court to the effect that the reversal of its 2015 decision
had achieved or promoted a worthy and important social goal. In the absence of
any such evidence, the application should be viewed through the prism of a
majority decision taken in 2016 pursuant to a difference of opinion within the
church regarding the latter's creed on this matter, a majority decision that
did not promote the constitutional goal of equality.
A court order that protects members of the
LGBT community is obviously to be welcomed. Hence, it inevitably appears
churlish to level any criticism against so laudable a judicial outcome. But the
judgment is not without its own incoherencies.
For starters, the issue was raised before
the court as to whether the Promotion of Administrative Justice Act was
applicable to this case. The court held that the impugned decision taken by the
General Synod did not fall within this act because the decision could not be considered
to be in the form of an exercise of public power. But the court then went on to
apply Section 9 (the equality clause) of the Constitution directly to the facts
of this case without any analytical treatment as to whether the Constitution (as
opposed to the Equality Act which was not apparently the cause of the applicants'
action) applied directly to what, on the court's view, was an exercise of
There is some discussion in the judgment of
the doctrine of subsidiarity, namely that courts should decide cases by
reference to the common law infused by the Constitution or legislation which
has been passed to give effect to constitutional rights as contained within the
Constitution rather than by direct reliance on a right contained within the
constitutional text itself. But, unfortunately, the court leaves the discussion
somewhat in the air and fails to deal with the question of the reach of the
Constitution and its application to private power. As a side bar, the kind of
power exercised by the church in this case should be susceptible to
The even larger legal elephant left in the
courtroom concerns the doctrine of entanglement and the requirement as to when
a court should intervene in religious disputes. This judgment, perhaps
understandably in the light of what it was required to decide in the instant
case, does not provide any clear answers.
Thus, questions of the discrimination
of women, no matter the hermeneutic justifications therefor, including women
imams or rabbis in certain forms of religious Jewish communities, remain for later
decision. This judgment may well promote applications of this nature.
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.
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