Dutch Reformed Church maintains decision not to recognise same sex marriages is not unfairly discriminatory

The Dutch Reformed Church maintains that its decision not to recognise same-sex marriages is not tantamount to unfair discrimination and is not in breach of the Constitution.

In 2015, the church took a decision to allow individual church councils to recognise same-sex marriages and also scrapped a rule that gay ministers of the church had to be celibate.

A year later in 2016, the church adopted a new policy, going back on the 2015 decision outlawing the acceptance of same-sex unions.

Reverend Laurie Gaum, his father Dr Frits Gaum and eight other members of the Dutch Reformed Church launched a High Court application to have the 2016 decision set aside and declared unconstitutional.

The North Gauteng High Court heard on Tuesday that the church did not believe that their decision to not accept same-sex marriages and rule that all gay clergy should be celibate, was in breach of the Constitution.

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Representing the church, advocate Schalk Burger, SC, argued that the 2016 decision did not force anyone into anything and did not prohibit same-sex couples from entering into civil unions.

He elaborated by saying that the church did not stop same-sex marriages, but that gay couples could just not get married in the Dutch Reformed Church.

"I would like to submit that there is no unfair discrimination. As I understand the Constitution there is room for the church to follow its own doctrine," said Burger.

He added that the church was allowed to determine its own policies and interpretations of the bible pertaining to same-sex unions.

The church conceded that this might be a form of discrimination but said that section nine of the Bill of Rights spoke to unfair discrimination. He submitted that the 2016 decision was not tantamount to unfair discrimination.

Chapter nine of the Constitution deals with the quality causes whereby no one may be unfairly discriminated against directly or indirectly on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

‘No right to hurt or discriminate’

Advocate Jeremy Gauntlet, SC, for Gaum and co, insisted that the church conceded to being discriminatory and that the church failed to put up facts to discharge the onus that there was a breach of the Constitution in the 2016 decision.

He added that the church did not have the right to invoke hurt or discriminate against anyone by not accepting same-sex unions and by "imposing celibacy on one roof of people".

"If celibacy is the virtue of morality, then they would tell everyone in the church to be celibate," Gauntlet argued.

"If it holds good for race, holds good for gender then it should hold good for sexual orientation," said Gauntlet, speaking about Chapter nine of the Constitution.

Gauntlet likened the church's stance to a hypothetical analogy whereby a Christian school adopted a policy to only take in white children or refuse to cater for disabled children.

"You can't do that."

Judgment has been reserved.