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Taking diversity seriously: Religious associations and work-related discrimination 101
consideration for possible exemptions is illegitimate. As Sandberg and
Doe observe: 123
Given that Parliament in enacting section 13 of the Human Rights Act 1998
has made it clear that particular regard be given to the rights of a ‘religious
organisation’, it is appropriate to ask why certain privileges have been
afforded only to the narrower category [of ‘organised religion’]. This may
actually infringe not only section 13 but more importantly article 9 of the
ECHR.
The narrow construction of the exemption as expressed by Richards J fails
to protect religious liberty and freedom of association adequately. It also
seems to reflect an unwarranted presumption in favour of equality. Since
freedom of religion cannot meaningfully be protected unless ‘religious
organisations' are protected from government encroachment, and because
a presumption in favour of equality and against freedom of religion is
illegitimate, South African courts should decline to follow Amicus.
6 Was Strydom correctly decided?
The Equality Court's finding that Strydom suffered serious injury as a
result of the church's discrimination – (8) above – cannot be gainsaid:
Apart from the violation of his dignity inherent in being the victim of such
discrimination, ‘he suffered depression and was unemployed' and ‘had to
sell his piano and house’. 124 The Equality Court nevertheless
underestimates the reasons for thinking that the burden placed on a church
by the anti-discrimination legislation may be substantial. To disallow a
church from discriminating impairs the ability of the religious community
of which it forms a key part to transmit its core beliefs - including the belief
that homosexual activity is sinful – by example, and may also impair the
ability of a church to maintain the religious ethos of its academy, which
includes the exemplification of these beliefs in its practices. This threatens
religious pluralism and diverse civil associations, which work to express a
range of conceptions of the good life and mitigate state power. 125
123 R Sandberg & N Doe ‘Religious exemptions in discrimination law’ (2007) 66 Cambridge
Law Journal 302 310. Sec 13 of the Human Rights Act reads: ‘If a court's determination
of any question arising under this Act might affect the exercise by a religious
organisation (itself or its members collectively) of the Convention right to freedom of
thought, conscience and religion, it must have particular regard to the importance of
that right.’ The Human Rights Act incorporates into English law art 9 of the European
Convention, which reads as follows: ‘Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change his religion or belief, and
freedom, either alone or in community with others and in public or private, to manifest
his religion or belief, in worship, teaching, practice and observance.’
124 Strydom (n 8 above) para 33. On the relationship between equality and dignity, see
Albertyn & Goldblatt (n 11 above) 8-13.
125 Galston (n 14 above) 533.