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Taking diversity seriously: Religious associations and work-related discrimination 87
the Court's reasoning is misplaced. In response to the dismay expressed by
religious groups in response to Strydom – the Apostolic Faith Mission and
the African Christian Democratic Party urging that ‘the right to equality
should not trump the right to religious freedom’, and the moderator of the
Dutch Reformed Church, Professor Piet Strauss, expressing the view that
‘a church should have the freedom to stipulate a lifestyle based on the Bible
for its employees and members’ 59 – constitutional law expert Professor
Pierre de Vos appears to have endorsed unqualifiedly all of the steps set out
in (1) to (10) above in his blog Constitutionally Speaking, commenting as
follows: 60
A person employed as a typist, a gardener (or a music teacher for that matter)
does not give religious instruction and forcing a church to employ such a
person in no way forces the church to espouse views or practices that its
religion frowns upon or even abhor [sic]. The religious freedom of the church
is therefore not affected while the rights of all citizens remain protected. This
seems like a sensible compromise also adopted by the Pretoria High Court.
To have held otherwise would have … created a situation in which religious
institutions are in effect above the law. So this judgment manages to balance
the interest of the state against the interest of religious groups in a sensible and
pragmatic fashion, refusing to sanction religious tyranny. In a country where
we are building a culture of respect for diversity and difference churches can
therefore not get a free pass. This is, after all, not Iran or Germany. We respect
different belief systems and do not give preference to the bigoted and
homophobic views held by some.
I believe (as De Vos does not) that the church's claim for an exemption
from the Equality Act has, from the perspective of liberal
constitutionalism, more to recommend it than is apparent from the
Strydom decision, although I agree (as does De Vos) with the Court's
ultimate finding in favour of Strydom. What principally distinguishes my
position from that of Basson J and De Vos is that, despite the value they
profess to place on diversity, I believe that the reasoning employed in
Strydom in fact fails to show sufficient respect for diversity.
As well as enquiring whether the reasons Basson J provides for his
conclusion are plausible, I shall contrast the Equality Court's reasoning in
Strydom with the reasons provided by courts in the United States, Canada
and the United Kingdom in cases in which associations have claimed a
right to discriminate on prohibited grounds. With the exception of its
engagement with a single Canadian decision, the Equality Court
pretermits a survey of the approaches of the US, UK and Canadian courts
in comparable cases. Yet I believe that a study of the approaches adopted
59 ‘Court's gay ruling upsets Christian bodies’ Mail and Guardian 29 August 2008 http://
www.mg.co.za/article/2008-08-29-courts-gay-ruling-upsets-christian-bodies (accessed
8 June 2009).
60 ‘On freedom of religion and the gay music teacher’ Constitutionally Speaking
3 September 2008, http://constitutionallyspeaking.co.za/?cat=88 (accessed 8 June
2009) (my emphasis).