26 August 2015 – On Friday the Constitutional Court of South Africa hears De Lange v Presiding Bishop, Methodist Church of Southern Africa CCT 223/14 (court papers), which we noted with great anticipation here and here.
Date of hearing: Friday, 28 August 2015
Issue: Whether the Methodist Church has the power to discontinue the services of a lesbian minister, who announced her decision to marry her life partner, for failing to follow its rules and procedures
Background: Ms de Lange was ordained as a minister of the Methodist Church, working in two congregations in Cape Town. Ms de Lange says that she had been open about her sexual orientation with the Church: from 2004, her life partner lived with her in official church accommodation, without any grumblings from her religious authorities. It was only in December 2009, when the couple decided to get married and Ms de Lange announced her engagement to her congregation, that the Church authorities snapped into action. Four days later, she was suspended. And in February the next year, after a disciplinary hearing, she was discontinued from the ministry. The reason given was that, when Ms de Lange announced her engagement, she pre-empted the Methodist Church’s own decision on same-sex marriage (the Church had not yet taken a firm position, simply saying that all decisions and action on same-sex unions must await the outcome of on-going processes of engagement), and that she had failed to consult with Church authorities.
The Methodist Church has an internal dispute resolution system. It prohibits any minister from instituting legal proceedings against the Church, and instead requires that conflicts be resolved by arbitration. Ms de Lange initiated arbitration proceedings, but the parties struggled to conclude an arbitration agreement. While an agreement was eventually finalised, Ms de Lange ultimately abandoned arbitration, arguing that the process would be futile and unfair.
Instead, she launched proceedings in the High Court. But the High Court found that her failure to follow arbitration proceedings was fatal. Instead, Veldhuizen J ordered her to submit to arbitration, and declined to say anything substantive about whether Ms de Lange was unfairly discriminated against.
The Supreme Court of Appeal (‘SCA’) agreed with the High Court that Ms de Lange should submit to arbitration proceedings. Ponnan JA’s judgment found that there was a valid arbitration agreement between the parties, and that none of the grounds that Ms de Lange raised to avoid the arbitration withstood scrutiny.
Ponnan JA also declined to decide the matter on the basis of the right to equality. Ms de Lange initially denied that she was arguing that the Church’s decision constituted unfair discrimination, although she later asserted that this was exactly her core complaint. Because she disavowed this argument in the High Court, the SCA refused to decide an argument that she herself had abandoned early in the litigation. This meant that the SCA simply didn’t consider the clash between her right to equality, and the rights to freedom of religion and association.
Ponnan JA, however, did consider whether it is appropriate at all for courts to wade into the choppy waters of religious doctrine. The doctrine of entanglement cautions against courts becoming involved in religious disputes about doctrine. The SCA endorsed this doctrine: an internal religious dispute should be determined domestically, it said, with courts intervening only where strictly necessary.
Wallis JA (currently acting on the Constitutional Court bench) wrote a separate judgment. He, too, would have dismissed Ms de Lange’s case but on different grounds. Her application to set aside the arbitration agreement should fail not because she ought to have submitted to arbitration, but because there is no binding arbitration agreement at all. This is because the obligation to arbitrate disputes rests on the assumption that there is a contract between the Church and its ministers. But there is no such contract; Ms de Lange’s position as a minister in the Church was not an employment one but rather ‘an expression of her vocation to ministry exercised under the discipline of the church’.
Ms de Lange now approaches the Constitutional Court, asking it to set aside the arbitration agreement, declare that she was unfairly discriminated against on the basis of her sexual orientation, and reinstate her as a minister of the Church, with retrospective effect.
Things to watch: The question at the heart of the De Lange case is rich and fascinating. Our constitutional state is committed to individuals being able to pursue their own conceptions of the good life. This means both that individuals should be able to form, and participate in, meaningful associations, including religious ones, but also that individuals should be able to choose who to marry without fear of discriminatory censure. How, then, does the Constitutional Court decide whether to respect a church’s religious doctrine or instead to vindicate an individual’s right to equality, especially on grounds – like sexual orientation – which historically have been denigrated?
Unhappily, to even reach this central question the Court will need to cut through a tangle of technical difficulties, as the case is ensnared in unwise decisions that were taken early in litigation.
The first knot is whether the Court can decide this as an unfair discrimination case at all. Ms de Lange has at points said that the unequal treatment she suffered is not at issue before the courts. Her legal team denies that she ever truly disavowed her argument that she was unfairly discriminated against. Instead, her founding papers are peppered with these allegations. All she did, they say, was state that she was not bringing a claim under equality legislation, but instead in terms of the common law. But this raises a related difficulty: her decision not to bring the case to the Equality Court under the Promotion of Equality and Prevention of Unfair Discrimination Act is itself unfortunate. Historically, the Constitutional Court has not had much patience for pleadings that circumvent legislation that is specifically designed to regulate an area of law, as that Act does.
The Court, though, does seem to want to examine the conflict between the right to equality and the right to freedom of religion and association. It issued directions to the parties asking for affidavits on this conflict. So, the Court has arguments before it from both parties, mitigating some of the prejudice that courts usually worry about when cases have not been pleaded properly. That these directions were issued also indicates that at least some of the Justices want to reach the substantive questions. And there are ways for the Court to do so. Typically, the Court is more reluctant to decide an argument that was not made in lower courts when legislation is being challenged. As Ms de Lange is challenging the Church’s decision, and not any legislation, that is not the case here. Nor is it the case that Ms de Lange’s unfair discrimination arguments have come out of the blue; she has put forward the substance of this argument, albeit in (vastly) differing forms, at various stages. Ultimately, what the Court must determine is whether it is in the interests of justice to decide the constitutional question.
To reach the merits the Court also, however, will need to contend with Ms de Lange’s abandonment of the arbitration process. There are two possible ways it could do this. It could endorse Wallis JA’s argument that there is no arbitration agreement at all, or it could agree with Ms de Lange’s lawyers that, because of the vexed constitutional issues, this is not a case capable of resolution by private arbitration: the Arbitration Act does allow a court to set aside, or sidestep, an arbitration agreement on ‘good cause shown’.
Still, unpicking the procedural snags in Ms de Lange’s case is an unenviable task. Given this, why would the Constitutional Court have set the matter down, rather than waiting for a case that raises the same issues, but is unencumbered by these complications?
One answer is that, had the Court not set the matter down, the problematic SCA judgment would stand. It is true that Ponnan JA’s judgment did not directly engage with the balance that needs to be struck between Ms de Lange’s right to equality, and the Church’s rights to freedom of religion and association. But it also did not confine itself to simply dealing with the arbitration question. Instead, it engaged with the merits, noting that the doctrine of entanglement prevents it from becoming involved in doctrinal disputes unless strictly necessary, out of respect for freedom of religion.
But this is a determination of balancing – and one that is weighted in favour of the Church. Previous judgments have shown that the Court is reluctant to determine the epistemic question of what a religious doctrine or practice is. However, this epistemic enquiry is fundamentally different from the claim that, just because a doctrine is religious in nature, it is immune from constitutional scrutiny. The SCA judgment runs those two enquiries together. And the Constitutional Court has recently asserted that there are no ‘areas of life and law where the values of the Constitution may be ignored’. Of course, this statement alone cannot resolve things: the point is that the rights in this case conflict, and so gesturing to the Constitution’s import is not determinative. At the very least, though, we can hope that the Court will correct the SCA’s mistake of assuming that a court’s decision not to get involved in resolving this dispute is legally – and morally – neutral.
If we take the Church’s assertion that it has a rule prohibiting same-sex marriage at face value, does its decision to discontinue Ms de Lange pass constitutional muster? The Church says yes. It argues that because Ms de Lange failed to follow the Church’s directions, its decision was a question of discipline, not of discrimination. Others have already noted the absurdity of this argument. But even if the decision is taken to be discriminatory, the Church contends that this discrimination is lawful. The Church is permitted to discriminate in some decisions about hiring and firing its ministers; as it points out, at the very least the Church can fairly discriminate on the grounds of religion, by hiring only Methodist ministers.
Does this extend to the grounds of sexual orientation too? Marriage, the Church says, is centrally important to it, and any court ruling that forces the Church to change its understanding of marriage would be impermissibly intrusive. The Church discusses a judgment by the Equality Court that held in favour of a gay music teacher, whose services were terminated by his church. But that case, the Church argues, is distinguishable from this one: because Ms de Lange, as a minister, was a spiritual leader she was expected to comply maximally with the Church’s tenets, and so its decision to discontinue her services was fair. Contrarily, Ms de Lange argues that the discrimination cannot be justified, given the entrenched disadvantage experienced by the LGBTI community. And she says that finding for her would not involve a serious imposition on the Church. She simply asks for her reinstatement, not for the Church to change its doctrines.
On the merits Ms de Lange, and not the Church, should win. Unlike many jurisdictions, our Bill of Rights binds private entities – including religious ones – as well as the state. The prohibition against unfair discrimination in particular has been found to apply to private persons, even when this restricts their freedom. And here, the restriction on the Church, while non-trivial, should not be overstated. It is one thing for the Court to prescribe that religious institutions themselves must solemnise same-sex unions. It is another thing entirely for the Court to condone the discontinuation of a minister on the basis of her same-sex marriage and so, too, to condone the prejudice to her fundamental rights. The former would involve more severe incursions into the autonomy of religious institutions. The Court simply does not have to consider whether this incursion would be justified now. The latter involves some restrictions on the Church’s rights to freedom of religion and association, but these must yield to Ms de Lange’s right to equality (and her right to dignity, which includes her right to choose to marry). Our constitutional presumption, as Bilchitz argues, should be principally in favour of the right to equality, in part because of our appalling history of discrimination.
Where does all this leave us? Some of the judges may be tempted to sidestep the thorny substantive questions by instead focusing on the procedural hurdles, even refusing to grant leave to appeal. On this basis, the Court may be divided, and it would be unsurprising if some of the judges quail in the face of the difficult preliminary questions, instead preferring a minimalist approach. But the fact that the matter was set down at all, notwithstanding that it could have been batted away purely on procedural grounds, indicates that at least certain members of the Bench are eager to deal with the merits. Ultimately, the Court may be tempted to split the baby. It might decide that the arbitration process, or even the broader decision-making process on same-sex marriage in the Church, must continue – but could inventively provide guidelines to the parties about the considerations that those processes must account for. Increasingly, the Court has been eager to encourage parties to meaningfully engage with each other. The disadvantage of this approach is that it presumes equal will and equal bargaining power between the parties; here, Ms de Lange is clearly in the more vulnerable position. But it has some clear advantages: it stays some of the Court’s hand in intervening in the domestic development of the Church’s position, but still provides guidelines as to what falls outside the ambit of constitutionality. Rather than imposing a top-down solution, the approach aims to foster dialogue, not conflict, between litigants on constitutional matters. Whatever the Court decides, we will be following keenly.
An account of the De Lange hearing can now be read here.
(Correction: An earlier version of this post wrongly stated the case was to be heard on Thursday, 27 August. The case had in fact been postponed by one day.)