Church's gay marriage scrap goes from bad to verse
The unholy infighting in the Dutch Reformed Church over who can marry whom is headed back to court
A fight over whether rulings by the Dutch Reform Church’s highest decision-making body supersede the South African Constitution has pitted human rights and pro-homosexual clergy against the institution.
The showdown – which is over whether the church can refuse to marry homosexuals, ban its pastors from doing so and punish its homosexual clergy – will be heard in the Pretoria High Court in August.
In 2015, the church’s highest decision making body, the general synod, announced it would allow same-sex unions, that gay preachers no longer needed to be celibate, and that individual churches could decide whether to allow civil unions. But, in 2016, following an internal appeal, the synod rescinded its decision, announcing that only marriages between men and women would be allowed in the church.
In May, the Commission for Gender Equality, along with several of the church’s preachers – who, in 2017, through a Public Access to Information request obtained internal synod documents regarding the decision – launched a legal challenge against the 2016 ruling.
In the latest salvo, the Alliance for the Defence of the Autonomy of Churches in South Africa (ADACSA), which wants to join the legal fray, said in legal documents that the commission and preachers’ arguments challenged the ability of each church to set its own doctrine, “and to govern their internal affairs according to their interpretation of their religious rights”.ADACSA consists of the Evangelical Alliance of South Africa and several other religious organisations.
It argues that an adverse finding against the church could potentially mean churches could lose their autonomy and be forced to adopt certain “politically correct” doctrinal positions, even if such positions go directly against their religious convictions.
“This is a severe infringement of the constitutional right to religious freedom.”
ADACSA said that while it is not adopting a position for or against same-sex relationships in the church, it is “advocating rather for the right of each religious institution to, in accordance with their internal regulations, to determine such ‘core doctrines’ for themselves”.
The church argues that the 2015 decision is “controversial” and that the clergy’s case was based on selective reading of its constitution, and did not take into account religious freedom or academic opinion on the right to equality, while the reversal did not constitute unfair discrimination.
“The 2016 decision held the religious beliefs of the majority of the delegates at the 2016 General Synod, and thus of the church as a religious institution.
“The entire 2016 decision was the result of days of debate. It reflects the church’s best understanding at the time of what the Bible – as the Word of God – requires. This goes to the core of the religious belief system of the church, and is not a matter [in] which a court can or should get entangled.”However, the commission, in its papers, argues that the Civil Union Act, which allows preachers to act as marriage officers, was adopted as “remedial constitutional legislation recognising the bitter oppression of the LGBTQIA”.
“The act seeks to fundamentally achieve the constitutional rights to equality; the prohibition of unfair discrimination on any ground, specifically sexual orientation ... and the right of religion.
“Remedial legislation enacted to eradicate past discriminatory practices is umbilically linked to the constitution. All statutes must be interpreted through the Bill of Rights ... and be consistent with the constitution.”
The commission argued that while religious organisations are not obliged to seek registration to marry or solemnise unions, if they do so they are discharging a public, not a private function.
“They marry or solemnise on behalf of the state … and subject to the Constitution. They cannot make a private claim to discriminate.“Individuals who hold a strong religious belief that marriage may and should be interpreted as including a union between people of the same sex, should be entitled to conclude a marriage ceremony in their own church.”
The clergy challenging the 2016 decision said the 2015 resolution “resolved the difficulty of diversity within the church by devolving differences in personal persuasions and practices regarding same-sex unions”.
They argue that the 2016 decision disqualifies every recognition of same-sex relations.
“This is despite accepting that a substantial part of the church’s membership holds the unshakeable religious conviction that same-sex relations are permitted by the Bible, and that God does not discriminate on the basis of sexual orientation.
“Through this flawed decision-making process and its outcome, the respondents [the synod] have infringed the right to religion itself. They have imposed their religious beliefs on others ... The result is severe emotional and spiritual harm, culminating in deep human suffering and even loss of life.”