Read the article “Whose Equality? Freedom of Religious Associations and Gaum v. Van Rensburg” in the Journal of Law and Religion.

The right to equality bodes popular in discourse on the protection of human rights and this right is frequently pitted against the right to freedom of religion. Implied in this is the possibility of viewing the right to equality as superior to the free exercise of religious convictions, a possibility that this article cautions against. This is illustrated by the various views on the parameters that should be drawn in the protection of the autonomy of religious associations (such as churches) regarding the prohibition of membership to such associations because of conduct stemming from certain forms of sexual orientation that are in opposition to the central tenets held by such an association. In this regard, in the Gaum v Van Rensburg judgment (Gaum), the South African High Court decided that a decision made by members of a church confirming that a condition of a life of celibacy for gays and lesbians for being ordained as ministers in the church and the prohibition against the solemnizing of same-sex civil unions by ministers, violates the right to human dignity. The extent of such violation, said the Court, resulted in unfair discrimination. What is inferred from this is the Court’s proclamation in support of a moral view, captured in the concept of equality (and unfair discrimination), that may clash with the moral view reflected by the central tenets held by a religious association relating to permissible forms of conduct stemming from sexual orientation. Consequently, this article argues that the Gaum judgment exceeded the approach by the judiciary in many democracies, which cautions against entangling itself with the core doctrinal tenets held by religious associations.

This also relates to understanding the right to equality from the perspective of religious convictions as well. Claims of inequality logically point to the idea that persons sharing the same characteristics or who commit to the same practices have been treated differently. But who should determine what these characteristics or practices should be? Is it the civil authorities, including the judiciary, or is it the central doctrines held by the members of a religious association? Answering these questions means answering a more ultimate question namely, “Whose equality should we be protecting against the background of the Gaum judgment?” Consequently, this article delves deeper into these questions in order to explain how equality constitutes a religious right that in turn should enjoy protection. For the civil authorities, including the judiciary, in liberal democracies to support the protection of non-religious rather than religious views on what constitutes a violation of the right to equality regarding what should be viewed as permissible forms of conduct stemming from sexual orientation, boils down to an unjust and unreasonable limitation placed on freedom of religion. Consequently, this comes in opposition to essential aims of a liberal democracy, namely the advancement of diversity and equality amongst various foundational beliefs, whether religious or non-religious.

Shaun de Freitas is professor of law in the Department of Public Law at the University of the Free State, South Africa, and Adjunct Professor at the School of Law at the University of Notre Dame Australia (Sydney).