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Taking diversity seriously: Religious associations and work-related discrimination 77
The right of churches to engage in work-related discrimination on
prohibited grounds does not stop there, however. Although many regret
the exclusion of women from the Catholic priesthood and the rabbinate of
orthodox Judaism, most people who have given thought to the matter
agree that anti-discrimination legislation should not be invoked to end this
gender discrimination. The reason why anti-discrimination legislation
should not be applied to prevent such discrimination is that religious
associations have a right to manage their own affairs in accordance with
the beliefs of members as expressed through their churches – freedom of
religion and associational autonomy demands as much. 7 Liberals can
admit this (second) exception without being committed to considering the
position on gender roles contained in the tenets of these churches to be
morally benign, or otherwise endorsing it.
The two examples considered above relate to positions of religious
leadership. Should the right of churches to discriminate in these contexts
be extended to include other categories of employee and independent
contractor? In a recent decision, Strydom v Nederduitse Gereformeerde
Gemeente Moreleta Park, 8 the Equality Court had to determine whether a
religious association should be granted an exemption from the Promotion
of Equality and Prevention of Unfair Discrimination Act (Equality Act) 9
7
W Galston Liberal pluralism: The implications of value pluralism for political theory and
practice (2002) 111. Roman Catholics, Muslims, orthodox Jews, Hindus and Sikhs may
all claim that, according to their beliefs, the valid performance of the sacerdotal
function requires that it be performed by a man. A church’s right to engage in workrelated
discrimination on the basis of gender (or sexual orientation, in the case of
churches whose tenets require religious leaders to be heterosexual) when it comes to the
ministry is, as the Colorado Supreme Court has observed, an ecclesiastical matter; a
‘church's decision of whom to hire as a minister necessarily involves religious doctrine'
(Van Osdol v Vogt 908 P 2d 1122 (Colo 1996) 1128). Eg, a claim by a woman asking a
court to intervene on her behalf because she wishes to be ordained as a priest by the
Catholic Church, which refuses to consider her for the ministry, places her in a
paradoxical position: on the one hand she claims to be a Catholic, which entails
acceptance of the authority of the Pope; on the other she is asking a court to overrule
the Pope's stance on woman priests. For a court to rule on this matter would involve it
deciding in favour of one side and against another in a wholly internal dispute within
the church, thereby altering the character of the religion concerned. As Barry observes,
to wish that the decisions of the Roman Catholic Church or its decision-making system
‘to be changed by secular authority is simply to want what Henry the Eighth achieved
several centuries ago: the substitution of secular for religious authority. It is surely not to
be wondered at if the courts decline to reproduce the work of the Reformation in the
guise of enforcing a law against employment discrimination. Those who despair of the
prospects of reform from within the Roman Catholic Church … always have the option
of joining the Anglican Church.’ B Barry Culture and equality: An egalitarian critique of
multiculturalism (2001) 176.
8 2009 4 SA 510 (T).
9 Act 4 of 2000. The reason the claim was brought under the Equality Act rather than the
Employment Equity Act is presumably that the teacher concerned was considered an
independent contractor rather than an employee. Sec 5(3) of the Equality Act provides
that the Act ‘does not apply to any person to whom and to the extent to which the
Employment Equity Act 1998 … applies’. Sec 4(1) of the Employment Equity Act
states that it applies to ‘employees’, where ‘employee’ is defined as excluding
independent contractors. Had Strydom been considered an employee, presumably the
Equality Act would have been inapplicable and the claim would have been brought
under the Employment Equity Act.