Should Religious Associations Be Entitled to Discriminate?

South African Journal of Human Rights, Vol. 2, 2011

41 Pages Posted: 29 Jun 2011  

David Bilchitz

South African Institute for Advanced Constitutional, Public, Human Rights and International Law; University of Johannesburg

Date Written: June 10, 2011

Abstract

Should religious associations be allowed to engage in acts of discrimination on grounds prohibited in the Constitution where they claim their religious doctrines require it? This paper argues for this question, in general, to be answered in the negative and seeks in the process to explore the tension between advancing equality in South African society whilst recognizing the autonomy of private associations. The Strydom case – dealing with the dismissal of a gay music teacher from a church on grounds of his sexual orientation – provides the backdrop for an analysis of these issues. The paper critiques the work of two authors – Patrick Lenta and Stu Woolman – who argue that greater emphasis should be placed on freedom of association in these circumstances even where such associations promote values that are in direct contradiction to those contained in the Constitution. For Lenta, the core concern relates to ‘protecting diversity’ whilst, for Woolman, it involves ensuring a society with a high quantity of ‘social capital’. I shall argue that both authors pay insufficient attention to the South African context which provides a strong case for a presumption in favour of equality and non-discrimination. Moreover, an engagement with the history of religion of South Africa provides strong reasons to avoid simply leaving a private religious domain alone that is at odds with the political morality of the state. I shall also seek to show that the very values that both Lenta and Woolman are concerned with do not unequivocally support their conclusions and in fact provide a case for the contrary point of view. The arguments I provide seek to establish that courts should refuse to condone discrimination on prohibited grounds even where this occurs on the basis of religious doctrines. Ultimately, the paper argues for South Africa to adopt an egalitarian form of liberalism which recognizes limits on the freedom of religious associations to discriminate as this is necessary to ensure respect for the equal dignity of all individuals in the polity.

Keywords: Freedom of Religion, Equality, Non-discrimination, Liberalism, Social Capital, Sexual Orientation

Suggested Citation

Bilchitz, David, Should Religious Associations Be Entitled to Discriminate? (June 10, 2011). South African Journal of Human Rights, Vol. 2, 2011. Available at SSRN: https://ssrn.com/abstract=1874683

David Bilchitz (Contact Author)

South African Institute for Advanced Constitutional, Public, Human Rights and International Law ( email )

The Old Fort Constitution Hill
Kotze Street Hillbrow
Johannesburg
South Africa

University of Johannesburg ( email )

PO Box 524
Auckland Park
Johannesburg, Gauteng 2006
South Africa

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