Serjeant at the Bar: Judgment against Dutch Reformed Church raises tricky legal questions
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 doctrine.
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 the church.
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 private power.
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 constitutional scrutiny.
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.
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