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The dismissal of a teacher on the academy of the Moreleta Dutch

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					Churches also subject to values of Constitution
Pretoria News (page 11, 26/08/2008)

Frans Viljoen
Director, Centre for Human Rights, UP
21 August 2008

The dismissal of a staff member of the Moreleta Park Dutch Reformed Church
academy on the basis of his involvement in a same-sex relationship poses the question
whether non-state institutions are compelled to observe the dictates of the
Constitution. Although the question arose in respect of a church, it is equally relevant
to other religious institutions, private hospitals, private clubs and non-profit
organisations.

Let there be no doubt: As a matter of principle, the values of the Constitution are a
guide to all state and non-state organs, including churches. As the supreme law of the
land, the Constitution is superior to church law and practice. Because South Africa is
a secular state, no religion may be elevated to state religion. Fundamentalism should
be held in check by the constraints of the law. Obviously, even if churches enjoy a
great measure of freedom in their functioning, their activities must remain within
legal boundaries.

In the classical liberal model, a constitution is understood to operate horizontally,
between the state and the individual, as a constraint on state power and excess. The
post-liberal world, in which our Constitution was born, understands that non-state
actors such as private corporations wield immense power. The Constitution may
therefore also apply vertically, between non-state actors (such as individuals and
companies, or worshippers and church authorities). Although all rights may
potentially bind non-state entities, the right to equality is the one right that private
entities are always bound to respect. This principle is embodied in section 9(4) of the
Constitution, which states that no person may unfairly discriminate against another
person, on a number of specified grounds, including sexual orientation.

This position has been arrived at in the light of South Africa‟s particular history of
deep-seated and systematic patterns of inequality, especially on the ground of race,
but also based on sex and sexual orientation. It is unimaginable that discrimination on
these grounds would be allowed to continue, just because the state is not directly
involved. For this reason, the constitutional position has been converted into ordinary
and more accessible legislation (the Equality Act).

In any legal dispute that might arise, the important starting point is that churches are
not immune from the supervisory role of the Constitution or the Equality Act. In
short: Closing the church doors does not lock out the effect of Constitution and the
Equality Act.

But not all differentiation or discrimination is unlawful. The determination of
responsibility in each particular case hinges on whether the discrimination was unfair.
Once discrimination has been shown to be based on one of the grounds specified in
the law, including sexual orientation, there is a presumption that the discrimination is
unfair. The party responsible for the discrimination then has to make out a case why
the discrimination could be regarded as fair, taking into account factors such as the
context, the extent to which the discrimination impacts on the person affected, and the
purpose it purports to serve.

It begs little argument that the exclusion of a person from a preferred place of
worship, from the community of congregants, or from employment constitutes a
serious impairment of dignity.

Placing the stated purpose under legal scrutiny, reasoned justifications rather than
vague invocations of morality, values and sin will be persuasive. In this process, the
Bible holds no privileged position. As far as it sheds light on the purpose of the
apparently discriminatory conduct, the coherence and logic of the textual position
may be questioned. It may, for example, be asked why sexual orientation is singled
out as a source for approbation, when the Bible itself is critical of many other social
practices. It may also be relevant that there is no single interpretation of the Bible on
this issue. In the American case of Boys Scouts of America v Dale, concerning the
dismissal of a scoutmaster because he was openly gay, religious groups for example
filed affidavits on both sides of the argument.

A justification invoking moral values departs from the premise that being gay is
sinful. Such an argument would be difficult to reconcile with the fact that our
constitutional compact regards sexual orientation – and by necessary implication,
resulting conduct – as a treasured and protected form of sexual identity. Acceptance
of different sexual identities is part of the diversity that we as South Africans must
accept, or at least tolerate, in whatever sphere we find ourselves. There is little room
for the facile distinction, so fondly drawn upon in the Dutch Reformed Church,
between the sinner (who is „accepted‟) and the sin (which is rejected).

This is not to argue that no differentiation would ever be acceptable under the
Constitution. Consider the following two extreme scenarios, representing a sliding
scale of possibilities. (1) A person alleges that he is excluded from a church service
because the language used is Afrikaans. Even if this exclusion constitutes indirect
discrimination, the church is quite likely to successfully invoke as the purpose of the
differentiation a need to worship in a language of one‟s choice in order to
communicate one‟s most intimate thoughts. (2) A person is denied access to church
service or employment on the basis of race. If the person uses the same language as
others and is a genuine adherent of the faith, it is difficult to imagine what legitimate
purpose exclusion on a racial basis would serve.

Even if a non-state entity employs someone, the Employment Equity Act applies.
According to this Act, neither the state nor private employers, including churches,
may unfairly discriminate against any employee. Sexual orientation is once again
specifically mentioned as a ground for non-discrimination. The only exception that
may justify discrimination is the „inherent requirements of the job‟. It is difficult to
imagine why being not gay would constitute an inherent requirement of a teaching
position, for example.

Would it not be deeply ironic if, in a society of difference and tensions, churches are
“forced”, by the constitution, to uphold the values that they should be representing in
the first place, such as tolerance, compassion and acceptance? Such an outcome
would lend support to the idea that human rights have, indeed, become humanity‟s
new religion.

				
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