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120 Chapter 4
currently constituted possesses a figurative and/or real sense of ownership,
so long as there is real social capital at stake, a court (and the state) must
cede to the religious association a significant level of control over entrance,
voice and exit.
Does Lenta ever seriously grapple with capture? I do not think so. And
to the extent that he does, he certainly does not give it much credence:
In Bob Jones University, the Supreme Court does not rule that a private,
religious university may be forced to abandon its internal, racially
discriminatory policy on pain of civil or criminal sanction. Such a step, as
Galston observes, would have implicated basic rights of freedom of
association and free exercise of religion that the Court has long defined and
protected, and it would have called for an entirely different legal analysis.
Even employing the line of reasoning it used to settle Bob Jones, the Court
would almost certainly have found that unlike the mere revocation of tax
exemption, a direct order to change the discriminatory policy would have
failed the balancing test by imposing an “undue burden” on petitioners’ free
exercise. 17
So the approach followed in Bob Jones University is on closer inspection
hardly supportive of the approach taken in Strydom. Extending the
precedent of Bob Jones University to the facts of Strydom would mean not
invalidating the church's discrimination on a prohibited ground, but
burdening the church by removing all forms of otherwise applicable public
encouragement. 18 Lenta fails to acknowledge the extent to which the
elimination of state subsidies or exemptions may work the same black
magic on a religion as direct assaults on the citadel. 19
2.3 Social capital
One can identify a third, golden, thread running through the two previous
justifications for associational freedom and collective religious practice.
This leitmotif might best be described as social capital. Social capital is – and
is a function of – our collective effort to build and to fortify the things that
matter. It is our collective grit and elbow grease, our relationships and their
constantly re-affirmed vows. Social capital emphasises the extent to which
our capacity to do anything is contingent upon the creation and the
maintenance of forms of association which provide both the tools and the
setting for meaningful action. Social capital is often treated as ephemera.
That makes sense. It is so hard to see. In fact, it is this elusive quality that
makes social capital so fragile. It is made up, after all, not of bricks and
17 Galston (n 12 above) 183.
18
Lenta (n 1 above) 89.
19 Internal capture is not the only danger. External capture poses an equally dangerous
threat. Should elected elites of a conservative strain wish to reverse progressive
decisions of the bench, it is easy enough to pack the courts with like-minded judges
who would reverse the trajectory of a Constitutional Court’s jurisprudence.