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114 Chapter 4
practice, rights to association and rights to community 'man up' against
rights to dignity and equality. In short, let us construct a hypothetical case
(a) in which something is truly and palpably at stake and (b) our respective
liberal views regarding how such conflicts ought to be resolved actually do
some work.
Here are the facts of a high-stakes constitutional matter:
(a) Choir participation or organ playing at Catholic mass requires
membership in the community – and the taking of communion.
(b) It was clear from any voluntary or commercial arrangement struck that
the church organist understood the rules of the religious community and
accepted that adherence to those rules was essential for any ongoing
voluntary or commercial transaction that involved religious rites.
(c) The organist played mass on Saturday night and Sunday knowing full
well that her sexual orientation conflicted with basic tenets of the religious
community. (Indeed, under the church's 'don't ask, don't tell policy', the priest,
the organist and many members of the community aware of her orientation
decided to keep quiet.)
(d) Only once the organist's sexual orientation was brought to the attention
of the church elders, and a formal inquiry was undertaken by a properlyconstituted
church board, did the church take the painful, but what it deemed
religiously requisite act, of discharging the organist.
(e) However, let us first acknowledge that the church board first contacted
the local bishop, who, sympathetic to the situation, contacted a cardinal in
Rome; the cardinal, somewhat vexed by the problem, decided that he did not
have the authority to take a final decision; he, in turn, contacted the Pope.
(f) The Pope, after contacting counsel, decided that while one could remain
silent about one's sexuality within the church and still belong to and
participate in the community, church scripture and doctrine made it clear that
membership within the community turned on adherence to clearly delineated
rules that made public acknowledgment of lesbianism and homosexual
activity a grounds for removal from any church office or from participation in
the rights of any parish.
(g) The Pope noted that this conclusion greatly pained him and that he
hoped that the organist would reconsider her sexual orientation and return to
the church as a fully-practising member of the parish.
Now we have an argument that liberals – of varying stripes – should find
worth fighting about: the (largely infallible) doctrinal pronouncements of
the Pope and the potentially conflicting dictates of a basic law committed
to the rights to dignity, equality, association and religious belief and
practice. 7
7
Several commentators have mistakenly construed my views about this ‘hard’ case for
my views about the outcome in Strydom. For a fuller account of my views in such
matters, see S Woolman ‘Seek justice elsewhere: An egalitarian pluralist reply to David
Bilchitz on the distinction between differentiation and domination’ (2012) 28 SAJHR
273.