Gay rights in the church: what will SA’s highest court say?

An issue of ‘burning importance’ to the churches and faith-based communities of South Africa comes to the Constitutional Court later this month. Most people would say the outcome is a foregone conclusion. They may well be right.

The case is brought by Ecclesia de Lange, a gay woman minister of the Methodist Church, who is challenging the action taken against her by the church after she announced she would be marrying her life partner. De Lange didn’t hide her sexual orientation, nor the growing relationship between the two women, and they lived openly together in accommodation provided by the church for their ministers, without any comment or sanction.

For De Lange and her partner it was important, however, that their lives reflected the truth of who they were, and after what must have been a great deal of reflection and soul searching, De Lange told her congregation about their decision. At the end of the formal service on Sunday 6 December 2009 she explained that she and her partner had decided to marry, asked for their support and gave members of her congregation a short letter about her journey to self-acceptance and her calling to ministry.

The church authorities moved swiftly first to suspend her, then to find her guilty of insubordination and other charges, and finally to discontinue her ministry in the Methodist church. De Lange took the matter to the High Court and then to the Supreme Court of Appeal, both of which ruled against her, saying she had to submit to the church’s internal ‘arbitration’ system. Citing the right to freedom of religion, they said courts were reluctant to get involved in matters of doctrinal interpretation.

Now De Lange has one more chance to challenge the church’s action, with her appeal to the Constitutional Court.

At this stage it’s hard to say exactly what will be argued when the case is heard on August 27, since the two sides dispute what may legitimately be considered and decided by the court.

There’s a bundle of technical legal issues about the nature of the relationship between a minister and the Methodist Church, the sanctions that may be imposed on a minister, arbitration provisions and what forum may hear a dispute or an appeal.

Then there’s the question of exactly what church law De Lange infringed with her same-sex civil union, a question that’s a lot more interesting for most of us than the technicalities of the arbitration provisions. For example, did the Methodist Church have a rule in place at the time of De Lange’s announcement and subsequent marriage/civil union that would have precluded her from taking those steps?

De Lange says that the Methodist church has not definitively pronounced on same sex marriage: to avoid division in the ranks of the church it has basically been decided not to make a decision, but instead to keep a dialogue going among members about the issue. The one thing that the church has not done, De Lange’s lawyers will argue, is to lay down a clear line on the subject and stick to it.

In her founding affidavit, De Lange herself asks how the church can refuse to make a decision (on the question of same sex marriage), thus effectively creating an institutional vacuum – and then take punitive action against someone who, in the absence of a church policy, acts in accordance with her conscience?

On the other hand affidavits from top Methodist officials claim that the church has a very clear rule on the subject of marriage: it’s one man and one woman and that’s the end of the matter. To explain this position, much scripture is quoted to illustrate how that view of marriage prevails in the sacred books.

Among the texts quoted to make this point are passages such as those which say that husbands are ‘the head of the wife’ and that wives should be subject to their husbands. No comment is made on these instructions, and it’s not clear whether the Methodist Church takes these exhortations about the relationship between spouses as literally as it seems to take texts about homosexuality.

A passage from these affidavits spells out the church’s official view on homosexuality thus: ‘Homosexual behaviour in particular contravenes fundamental issues of Christian doctrine. It goes against the very heart of human identity – the male and female that God created; and God’s family plan for a healthy family life as revealed in the Scriptures.’

The approach of the church however is to try to win members back to the church rather than expelling them, explain church officials in their affidavits, and in keeping with that spirit, the church may ‘discipline a member who engages in homosexual behaviour or who enters into a same sex civil marriage if a charge is laid against her with the disciplinary bodies of the church – but not exclude her.’ Ministers such as De Lange, on the other hand, are held to a higher standard as they are ‘custodians of our doctrine’.

The church argues that the Constitutional Court should refuse to hear the matter at all and, for a number of reasons, it should certainly not examine whether the church’s position on homosexuality and same-sex marriage in particular is constitutional. The reasons the court should not engage with the issue include the guarantees of religious freedom in the Bill of Rights and the fact, according to the church, that De Lange did not frame the dispute as a constitutional issue from the start. This means that neither the High Court nor the Supreme Court of Appeal considered the constitutional issues that might be involved, nor were other groups that might be interested in the issue notified and allowed to participate.

There’s also the suggestion that the dispute has nothing to do with discrimination against gay people, and that it is simply a question of church discipline. That, I can’t help thinking, is rather like arguing that the pass laws had nothing to do with the colour of the people charged under their provisions: the reason for their arrest was simply that they were breaking the law by not having the required permit.

What gives the case particular edge for outsiders, of course, is that for any gay person not holding a prominent position in a church that has problems about accepting homosexuality, a civil union is a perfectly normal, legal option in South Africa.

De Lange’s lawyers comment on this anomaly, saying it cannot be acceptable to ‘penalise someone for exercising a legal right – however biblically objectionable – especially one so intimately connected with their dignity and freedom as their right to marry.’

De Lange’s case will sharply divide the public, and I can’t see anyone being moved from their pre-existing position by the legal argument of either side.

But against this background of dispute and acrimony I keep remembering a magnificent, humane and deeply moving plea by Archbishop Desmond Tutu. Written as a forward for the 1997 publication of the book, Aliens in the household of God: homosexuality and Christian faith in South Africa, he says that if the church, after the victory over apartheid, is looking for a ‘worthy moral crusade’, then this is it: ‘the fight against homophobia and heterosexism’.

During the struggle against the ‘ghastliness of apartheid’, a system that penalised people for something they could do nothing about, namely ‘their ethnicity, their race, their skin colour’ what ‘thrilled his heart’ and inspired him was the example of ‘a Lord who chose to side with the hungry, the homeless and the poor’.

He added, ‘One would have expected that the church … would reflect those attractive characteristics of its Lord and Master. Alas, this has not always been the case, for the church … has been riddled with racism, sexism and heterosexism’, punishing people for something they could do nothing about – their sexual orientation.

As I read De Lange’s simple and heartfelt story about her journey to the ministry, having initially rejected herself and feeling she would be rejected as a member of the church, the biggest question in my mind was why she wanted anything to do with an institution whose views were so at odds with her very being.

The official position of the Methodist Church, according to the affidavits before the court, is that homosexual behaviour ‘goes against the very heart of human identity’. That’s a devastatingly punitive view of such an essential part of a human being –one’s sexuality. Why did she put herself in a position where she could be so hurt, I wondered? If she felt such a strong calling to ministry, surely it would have made sense to seek a church whose arms were more welcoming to all?

Tutu, in the same forward, says that the church – he is speaking of his own denomination, but he could be speaking about others – has been committing what he regards as ‘the ultimate blasphemy’, namely ‘making the children of God doubt that they are children of God’.

As if in answer to my question about why someone like De Lange sought membership and ministry in a church that could not accept her in the fullness of her humanity, he adds, ‘Lesbians and gays have been made to reject God and, in their rejection of the church, they have been made to question why God created them as they were.’

Decoded, the message for De Lange from her church was that her sexuality would be tolerated as long as she made no issue of it, as long as she stayed ‘in the shadows’. She could continue to live in sin with her partner, as the official policy would see it, but was not allowed to seek official recognition of their relationship. For that she was obliged to wait until the church pronounced itself ready to make a change. But how much longer, any reasonable person would ask, would that be? For how many more years would the church want someone like de Lange to wait before being ‘allowed’ to marry?

The church’s view is that the issue raised by the case is one of ‘burning importance’, not only to the church ‘but indeed to all or at least the overwhelming majority of organised religions in South Africa’.

‘All or most of them differentiate between people on very many grounds, including gender, sex, marital status, sexual orientation, religion, conscience and belief,’ says the church. That much no-one will dispute.

I would be delighted to be proved wrong, but this, I suspect, might well not be a case in which the court will seriously grapple with the meaning and constitutionality of those far-reaching ‘differentiations’ – there are so many technical issues which they could address instead.

And, if the judges duck the issue, churches that share the views of the Methodists will be allowed, unchecked, fortified even, to continue their message of discrimination and exclusion of gays and lesbians as people ‘going against the very heart of human identity’, forbidden the normal joys of a sanctioned marriage relationship. As though they were, in Tutu’s words, ‘aliens, separated and cast out from the household of God’.

* First appeared in Legalbriefs 12 August 2015

2 thoughts on “Gay rights in the church: what will SA’s highest court say?

  1. The church is a violent organisation, and we have the constitutional right to live in peace. The Constitutional Court might like to think on this:

    “When you call yourself an Indian or a Muslim or a Christian or a European, or anything else, you are being violent. Do you see why it is violent? Because you are separating yourself from the rest of mankind. When you separate yourself by belief, by nationality, by tradition, it breeds violence. So a man who is seeking to understand violence does not belong to any country, to any religion, to any political party or partial system; he is concerned with the total understanding of mankind.” – Jiddu Krishnamurti

  2. So interesting….. so God made a mistake when he/she created a minority of the population to have a different sexual orientation from the majority?

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