Piet Olivier | Between a frock and a hard place: the Constitutional Court’s hearing for De Lange v Presiding Bishop

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1 September 2015 – Can the Methodist Church fire a minister because she married her same–sex partner? This is the question raised by De Lange v Presiding Bishop, Methodist Church of Southern Africa (discussed in last week’s preview), and it places the Constitutional Court in an uncomfortable position. If it answers yes, it not only permits the Methodist Church to discriminate on the basis of sexual orientation (normally an anathema under the Constitution), but it also opens the door to allowing religious organisations to discriminate on other grounds. On the other hand, if it answers no, it forces the Methodist Church (and possibly all religious institutions) to allow gay religious leaders, something they are deeply averse to. It may also place a number of ancient religious practices on the chopping block, including the common prohibition on female religious leaders. While this may please progressives, it would, in the eyes of many, make deep inroads into religious freedom.

At Friday’s hearing, it was clear that the Constitutional Court was aware of the gravity of the choice it was being asked to make. Deputy Chief Justice Moseneke asked counsel for Ms de Lange, Advocate Anne-Marie de Vos (a member of the South African LGBTI–rights movement), whether a finding that it is unconstitutional for the Methodist Church to exclude gay ministers would lead to the striking down of many other religious practices. Can the Court tell mosques to treat women equally to men? Will the courts have to order traditional African communities to end ritual circumcision? Justice van der Westhuizen asked Advocate Wim Trengove, counsel for the Church and a regular before the Constitutional Court, a similarly vexing question: if a church is permitted to exclude homosexuals, why should another church not be permitted to exclude, for example, black people?

It is thus unsurprising that both counsel for Ms de Lange and for the Church tried to limit the implications of their arguments. Advocate de Vos argued that preventing the Church from discriminating on the basis of sexuality does not necessarily prevent other religious organisations from discriminating on other grounds. Each discriminatory practice would have to be considered on its own merits. Her counsel did not, however, come up with any convincing argument as to how the Methodist’s prohibition on gay ministers is different in principle from, say, the Catholic Church’s prohibition on female priests.

Mr Trengove’s effort to limit the fall-out of permitting discrimination on the basis of sexuality was more specific. In the first place, he argued that the Court was only being invited to permit the exclusion of gay religious leaders, and not of lower-ranking employees or ordinary members of the congregation. And, he argued, it is acceptable for the Methodist Church to exclude a gay religious leader because such a leader could not credibly convince others of the Church’s doctrine that homosexuality is immoral. Thus, the Methodist Church was not merely discriminating due to naked prejudice — the discrimination was relevant to Ms de Lange’s ability to do her job.

Third, in response to Justice van der Westhuizen on race, Mr Trengove explicitly argued that a finding in the Church’s favour would not allow religious organisations to discriminate on the basis of race. This is because race is a special case, most obviously because of our history, but also because the Constitution, in certain places, elevates race above other grounds of discrimination. He referred to section 29(3), which specifically prohibits private schools from discriminating on the basis of race and does not explicitly prohibit discrimination on other grounds.

The Church’s other strategy was to tempt the Court into avoiding the substantive question and leaving it for another day. Mr Trengove argued that the Court should not reach the question of whether the Church had acted unconstitutionally because Ms de Lange should have relied on the Promotion of Equality and Prevention of Unfair Discrimination Act, a statute enacted to give effect to the right to equality, instead of directly on the Constitution; because she had specifically disavowed the discrimination argument earlier in the litigation; and because the matter should be returned to arbitration. It is not clear whether the Court will bite, however, as these arguments attracted skeptical questions from Justices van der Westhuizen, Cameron and Zondo.

Ultimately, the hearing gave very little indication as to how the court will decide. Perhaps unsurprisingly, given his activism on LGBTI rights, Justice Cameron seemed most sympathetic to Ms de Lange’s case and repeatedly questioned why the Church should be permitted to penalise Ms de Lange merely for formalising a loving relationship. As indicated by his question on race, Justice van der Westhuizen seemed worried about opening the floodgates to other kinds of religiously–sanctioned discrimination. On the other hand, with his question on ritual circumcision, the Deputy Chief Justice expressed the concern that a finding for Ms de Lange might oblige the courts to interfere with a wide range of other cultural and religious practices. The Chief Justice, possibly mindful of the scrutiny his faith has attracted in the past, remained largely silent.

Piet Olivier

About Piet Olivier

Piet Olivier is a researcher at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany. He is an admitted attorney and holds a BA from the University of Stellenbosch and an LLB from the University of Cape Town. He has clerked at the Constitutional Court in the chambers of Chief Justice Mogoeng and Justice van der Westhuizen. In September he is heading to Oxford to read for a BCL. He is interested in the relationship between private law, the Constitution, and social and technological change.