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82 Chapter 3
laws ‘will often have more force than claims deriving from other
associations’. 30
Neither freedom of religion nor associational liberty, however, are
absolute rights. Nor is the right to equality an absolute right. Freedom of
association and religious liberty will sometimes have to give way to the
right to freedom from discrimination. Resolving in a particular case the
question of whether the rights to associational freedom and religious
liberty should prevail over non-discrimination depends on a balance:
whether the state should be permitted ‘to subject religious institutions to
laws that substantially burden those institutions, or even strike at their
heart … depends on the extent of the interference with religious
convictions and the strength of the state's justification’. 31 It is in the nature
of such a proportionality exercise that ‘neither conclusion (to interfere or
not to interfere) can be justified by way of a presumption (for or against
interference)’. 32
3 Equality is not more fundamental than freedom of
religion
In Strydom, Basson J creates the impression that the right to equality is
more fundamental, important and ‘core’ than the rights to freedom of
religion and freedom of association, with the result that the church's claim
is weakened in advance of his carrying out of the balancing exercise. He
does so in two ways. First, he mentions the right to freedom of association
only once, in passing, in a paragraph in which he (correctly) dismisses
Taylor v Kurtstag 33 as unhelpful to the question of how to balance religious
liberty and equality in Strydom – Taylor being concerned with the rights of
a member of a church, rather than a non-member as in Strydom, and not
being a case involving unfair discrimination. 34 His failure to consider the
right to freedom of association more fully and to explicate the content of
this right in the present context has the effect of improperly diminishing its
significance, tipping the scales in favour of the right to equality.
30 K Greenawalt ‘Freedom of association and religious association’ in Gutmann (n 16
above) 136.
31
C Sunstein ‘Should sex equality law apply to religious institutions?’ in J Cohen et al
(eds) Is multiculturalism bad for women? (1999) 93.
32 Gutmann (n 16 above) 13.
33
2005 1 SA 362 (W).
34
In Taylor (n 33 above), an orthodox Jew sought to prevent the Beth Din, a Jewish
ecclesiastical court established to resolve disputes between members of the orthodox
Jewish community, from publishing a cherem, a notice excommunicating him from the
faith. Following his divorce, the Beth Din had reached a determination directing him to
pay maintenance in respect of his children. He had failed to abide by the order,
subsequent to which the Beth Din had issued the cherem. The applicant objected to the
publication of the cherem on the grounds that it constituted defamation and violated his
right freely to associate with other members of his religious community. The court ruled
that as an orthodox Jew, he was ‘required to comply fully with the dictates of Jewish
law and society and the mandates of Jewish law and ethics’, which include the