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78 Chapter 3
to permit it to engage in work-related discrimination on the basis of sexual
orientation with respect to a music teacher. The issue confronting the
Court was whether a religious association's right to discriminate on
prohibited grounds should extend beyond religious leaders to include a
music teacher in a faith school not involved in religious instruction.
My purpose in this article is to determine the appropriate domain of
anti-discrimination law in so far as government wishes to prevent workrelated
discrimination by, and within, religious associations. Claims by
religious associations that they should be permitted to engage in workrelated
discrimination on otherwise illegal grounds give rise to a clash of
rights: the rights to freedom of association and freedom of religion, on the
one hand, and the right to equality on the other. 10 My aim is to ascertain,
with reference to Strydom, the circumstances in which it is acceptable to
privilege the rights to religious liberty and freedom of association over the
right to equality: circumstances, that is, in which religious associations
should be permitted to engage in work-related discrimination on otherwise
prohibited grounds.
2 Equality, freedom of association and religious
liberty
The principle of equality, a core liberal right, requires that people should
be treated with equal concern and respect. 11 The inclusion of the right to
equality in the Constitution obliges the state to ensure that the principle of
equal treatment is not violated in central areas of people's lives such as
work.
Work is central to most people because it provides an income stream,
enabling individuals to house, feed and clothe themselves and their
dependants. Work also provides non-economic benefits, such as a
heightened sense of well-being, improved self-esteem and a reduced level
of depression. 12 The right to equality requires that all individuals have
equal access to these benefits. Work opportunities should in general not
depend on the characteristics of individuals, such as religion, race, gender
10 The right to freedom of association is protected in sec 18 of the Constitution, which
provides that ‘[e]veryone has the right to freedom of association’. The right to freedom
of religion is recorded in sec 15(1) of the Constitution, which reads: ‘Everyone has the
right to freedom of conscience, religion, thought, belief and opinion.’ Freedom of
religion and associational liberty are conjoined in sec 31(1): ‘Persons belonging to a
cultural, religious or linguistic community may not be denied the right, with other
members of that community (a) to enjoy their culture, practise their religion and use
their language; and (b) to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.’
11 For a discussion of the right to equality in the context of South African
constitutionalism, see C Albertyn & B Goldblatt ‘Equality’ in Woolman et al (n 1
above) ch 35.
12 V Schulze ‘Life’s work’ (2000) 100 Columbia Law Review 1881.