Quote of the week


Ngcobo CJ
Electoral Commission of the Republic of South Africa v Inkatha Freedom Party
29 July 2015

Why do dominant religions so often get a free pass from courts?



Yet, he heads a church that institutionalises discrimination against women and against 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 the 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 FAK), 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.


(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, compared 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 get 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 practicing their religion (even though this harms no one else) as the law prohibits Rastafarians 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 who have to enforce the sometimes conflicting rights contained in the Bill of Rights.


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 remains 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.


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 its bigotry towards gay men, lesbians and transgender people – what was viewed as an abomination suddenly becomes a challenge to be dealt with in the spirit of love and compassion.




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 others or by failing to respect the inherent human dignity of others. Although different rights that are in tension 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.


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 the baby-killing unconscionable. But it will also be because most of us believe that the belief that baby-killing is mandated by god is bizarre and wrong. We would dismiss the value of the belief and would have no qualm in choosing the rights of babies above the rights of what we would think of as a crazy religious belief.



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 that this is justified by the greater importance of upholding your religious beliefs.


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 are also probably going to 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 the expression of the belief.

Our courts – just 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 at present will order a church to stop discriminating against women if that church claims that the gender discrimination is authorised by their God. It is also for this reason that a court may think twice before labelling homophobic speech as 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 protect the vulnerable against the powerful than to protect 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 better to 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) seldom admit to their privilege and are seldom prepared to give up that privilege voluntarily. This means, in the short term, 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.


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