New Threat To Autonomy

A very important case is being heard in the Pretoria High Court on 21st August 2018 which could potentially have dire implications for the autonomy of the Church – and indeed the broader religious community – in South Africa.

Background to the Case

This case is known as Gaum vs. the Dutch Reformed Church. It concerns a decision by the DRC Synod in 2015 to permit (although not oblige) its ministers to solemnize same-sex civil unions and to remove the celibacy requirement for gay and lesbian ministers.  This decision was subsequently reversed by the same Synod in 2016.

The applicants are alleging that the 2016 decision should be set aside and corrected by the Court due to procedural irregularities. They are further alleging that the DRC’s decision amounts to unfair discrimination against gay and lesbian people and for this reason are unconstitutional and should be set aside and corrected by the Court.

Important Developments

A game changer has come in the form of an application last month by the Commission for Gender Equality (CGE) to intervene as a “Friend of the Court” (Amicus Curiae) in this case. The CGE is asking the Court to go even further and to find that, from a constitutional point of view, no church or religious grouping should have any discretion at all to decide whether or not they solemnize same-sex civil unions/marriages.

This case has therefore morphed into one which potentially challenges the ability of each denomination, church or religious grouping to set their own doctrine and to be entitled to govern their internal affairs according to their own interpretation of their religious doctrine.  Should the Court agree with the CGE’s position, it will effectively mean that churches and religious organizations can be forced to adopt certain “politically correct” doctrinal positions, even if such positions go directly against their religious convictions and beliefs. This intervention requested by the CGE is clearly a severe infringement of the s. 15 Constitutional rights to religious freedom and it would completely undermine the autonomy of the religious community as a whole.

It is important to note that although some denominations, churches and religious groupings in South Africa have differing doctrinal views on the issue of same-sex relationships within the Church, the primary aspect of this case where we can all agree concerns the vital importance of protecting the autonomy of the Church and the broader faith community from external interference in their beliefs.  This position must therefore be defended at all costs.

Call to Action

In order to draw the Court’s attention properly to what we believe the correct constitutional position relating to the autonomy of the Church should be, a group by the name of the Alliance Defending the Autonomy of Churches in South Africa (ADACSA) has been formed which is applying to become Amicus Curiae in the above case.

ADACSA will be arguing:

That religious institutions have a constitutional right to religious freedom which includes – as a central aspect thereof – the right to institutional autonomy

.That the CGE’s contentions are untenable and that its interpretation of the law contradicts the existing constitutional jurisprudence – particularly the “Doctrine of Entanglement” where Courts have always been very reluctant to involve themselves in the internal doctrinal and governance issues of religious organizations.

It is very important that the Church, in particular, presents a strong and united position on this matter.  We therefore invite your church, ministry or organization to join those who are already members of ADACSA for the purpose of intervening in this case to be heard on 21st August 2018.  Current members include Freedom of Religion South Africa (FOR SA), The Evangelical Alliance of South Africa (TEASA), Christian Lawyers Association and other organizations.

 

For more information on this case – and to apply to join ADACSA in this matter – write to info@forsa.org.za

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