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Taking diversity seriously: Religious associations and work-related discrimination 83
Secondly, he seems to think that the right to equality is more
fundamental than the right to freedom of religion in the post-apartheid
constitutional order. He does not make this claim explicitly, but it is
strongly implied by what he says: that although freedom of religion is an
‘important’ right, the right to equality is ‘foundational to our constitutional
order’. 35 He quotes Minister of Education v Syfrets Trust Ltd 36 to the effect
that equality is ‘not merely a fundamental right; it is a core value of the
Constitution' that ‘goes to the bedrock of our constitutional architecture'. 37
The claim that the right to equality takes precedence over religious liberty
is also implied in a paragraph that appears to state, in the context of the
balancing exercise, a presumption in favour of equality: 38
The question remains whether the right to religious freedom outweighs the
constitutional imperative that there must not be unfair discrimination on the
basis of sexual orientation. The constitutional right to equality is foundational
to the open and democratic society envisaged by the Constitution. As a
general principle, therefore, the Constitution will counteract rather than
reinforce unfair discrimination on the ground of sexual discrimination.
The trouble with the claim that the right to equality is more fundamental,
34
obligation to submit to the jurisdiction of the Beth Din and to accept its imposition of
the state of cherem (para 35). These obligations are voluntarily assumed by members of
the faith and not coerced. The Court recognised a right, previously recognised in South
African law, of religious organisations to excommunicate individuals in order to
safeguard the tenets of their faith. The court held that the right to freedom of
association includes the freedom to refuse association; it must extend as far as allowing
churches to exclude members who act contrary to their beliefs, rules and
determinations (para 37). Religious organisations are entitled to excommunicate
recalcitrant members to ensure conformity with the rules of the faith, to impose
sanctions for their contravention and to protect the right of other members of the
religion not to associate with nonconformists (paras 40 & 58). The Court's decision in
Taylor is correct: Religious associations should be free to impose their own rules on
members, and although the state cannot punish husbands who disobey these rules,
actions instituted by the church which are intended to put pressure on members to
abide by Jewish law, such as the cherem, are acceptable. The liberal position (which the
judgment reflects) has not progressed much from the view advanced by Locke in his ‘A
letter concerning toleration’ in I Shapiro (ed) Two treatises of government and a letter
concerning toleration (2003 [1689]) 223: The means by which members of churches ‘are
to be kept within their duty, are exhortations, admonitions and advice’. If this fails, the
recalcitrant individual may be excommunicated: ‘This is the last and most utmost force
of ecclesiastical authority: No other punishment can thereby be inflicted, than that the
relation ceasing between the body and the member which is cut off, the person so
condemned ceases to be a part of that church.’ Locke continues: ‘No church is bound
by the duty of toleration to retain any such person in her bosom, as after admonition
continues obstinately to offend against the laws of the society. For these being the
condition of communion, and the bond of the society, if the breach of them were
permitted without any animadversion, the society would immediately be thereby
dissolved.’ For a more recent statement of this position, see TM Scanlon ‘The difficulty
of tolerance’ in TM Scanlon (ed) The difficulty of tolerance: Essays in political philosophy
(2005) 187 194.
35 Strydom (n 8 above) paras 9 & 10.
36 2006 4 SA 25 (CC).
37
Strydom (n 8 above) para 10.
38 Strydom (n 8 above) para 14.