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92 Chapter 3
criteria that are not part of the church's self-understanding and will fail to
give due consideration to the religious association's own account of the
religious foundation of an employee's activities. Even so, this does not
mean that religious associations should not be required to demonstrate to
the court that the position related to the unfair discrimination is sufficiently
closely connected to the doctrinal core of the church.
The Amos court mistakenly sought to avoid the task of distinguishing
between work that is religious in nature, and work that is not. It ‘refused to
require the Mormon Church to demonstrate that discrimination in hiring
at its gym was a matter of faith or affected religious life in terms of doctrine,
ritual or authority’. 79 By contrast, Basson J rightly held that religious
groups should not be permitted to engage in work-related discrimination
unless the job in question is sufficiently closely connected to the doctrinal
core of the religion. Permitting religious organisations to coerce an
economically-dependant employee or contract worker into making this
choice by insisting on compliance with its religious discipline is certainly
to impose a burden on him, and can only be justified if the job in question
is religiously based. This is so because (as Brennan J recognised) only
religious activity should be viewed as necessary for the community's selfdefinition.
Basson J's approach is in any case consistent with the approach
of courts in the US in cases involving employment discrimination on
grounds other than religion (the only group covered by the section 702
exemption) including race and gender: in cases in which religious
associations discriminate on one of these other grounds, they are regularly
called upon to demonstrate the religious nature of the activity.
A final decision of the US Supreme Court, Boy Scouts v Dale, 80 shows
how far the court is prepared to go to protect the rights of associations to
discriminate on otherwise prohibited grounds. Dale, admittedly, is not, in
several respects, analogous to Strydom: It is not concerned with workrelated
discrimination, but rather with discrimination against a member,
and it is concerned with discrimination by a non-religious, rather than
religious, association. It nevertheless has in common with Strydom that it
involves discrimination by an association on the grounds of sexual
orientation, a legally-prohibited ground. The Boy Scouts of America
(BSA), ‘a private, not-for-profit organisation engaged in instilling its
system of values in young people’, 81 revoked the adult membership of an
assistant scout master when it learned that he was an avowed homosexual
and gay rights activist. The BSA claimed that the homosexual conduct of
Dale was inconsistent with the values it seeks to instil in young scouts –
much as the church in Strydom averred that Strydom's homosexual activity
was inconsistent with the values it was seeking to impart to pupils. Dale
was an adult scout leader whose role in the BSA included ‘instructing
79 Rosenblum (n 13 above) 190.
80
530 US 640 (2000).
81 Dale (n 80 above) 643.