Abstract

DU PISANI, Kobus. The Constitution, churches and gay rights: South African case studies. Tydskr. geesteswet. [online]. 2021, vol.61, n.1, pp.193-210. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2021/v61n1a12.

In South Africa gay persons are theoretically protected in the Constitution against unfair discrimination on account of their sexual orientation. However, in practice, for example in the employment practices of churches, transgression of this constitutional guarantee often occurs. This paper analyses two case studies where church employees took their employers to court for unfair discrimination on the basis of their sexual orientation. In both cases the balancing of constitutional rights, the right to equality on the one hand and the rights to freedom of religion and assembly on the other hand, were at stake. Although the two cases had very different outcomes, they both demonstrated that South African courts remain reluctant to interfere in the doctrines and internal affairs of churches and prefer to limit their judgement to whether the churches applied their own policies and procedures fairly. Therefore, gay persons taking cases of unfair discrimination in churches to the civil courts in South Africa are not assured of success. The preferred route to resolve such cases is internally within the churches rather than in the courts. The hopeful trend, internationally and in South Africa, is that attitudes in favour of gay rights are rapidly gaining ground in society, including in religious communities, and that soon, even in conservative mainline churches, full equality for gays will be a reality.

Keywords : gays; South Africa; Constitution; churches; equality; religious freedom; civil courts; entanglement doctrine.

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