Litnet

Gay people all over the world have often been subjected to the wrath of over-zealous and mostly fundamentalist religious groups. It is repeatedly said that homosexuality is “wrong” or even “unlawful” because the Bible or the Qu’ran or Torah “says so”.

What is the actual standing in law in South Africa of these books or of religion per se?

A good example of the conflict between religion and the law is the struggle for gay equality in marriage. It is often not well understood that marriage in South Africa, despite the enactment of the Civil Union Bill, is still not equal – that there still is a legal distinction between heterosexual marriages and same-sex civil unions. Despite the Constitutional Court’s directive that the Marriage Act of 1961 be amended, and if not done, the words “or spouse” be read in, the government chose to ignore this instruction and enacted the separate, but equal, Civil Union Act. The old Marriage Act of 1961, which allows only for marriage between one man and one woman, is still in effect and remains law. A same-sex marriage may still not be entered into under the old act. Parties who wish to be married under this act for sake of equality will have to bring an application to court for confirmation that the words “or spouse” are now deemed to be written into the act and thus applicable to all. This won’t be easy – ask Ms Fourie and Ms Bonthuys about their long legal struggles to have marriage for same-sex couples legally recognised. (We owe them much!)

The reason for the distinction is, in fact, religion, when carefully considered. After the Department of Home Affairs reluctantly held consultations with the populace throughout South Africa, where the general feeling was overwhelmingly against gay marriages, it gave them enough ammunition to retain the Marriage Act of 1961 unchanged, and introduce the Civil Union Bill to (according to them) adhere to the Constitutional Court directive.

It means, in effect, that the Marriage Act exists mainly for heterosexuals who see marriage as a sacred religious institution to the exclusion of gays, and that the Civil Union Bill exists for same-sex couples and those heterosexuals not wishing to be burdened with the “outdated” label of “marriage”, or “religious marriage”.

In South Africa, religion and the law came head to head on the issue of gays in the landmark decision of Grobler vs Moreleta Park NG Kerk. Johan Grobler was appointed as music teacher in the 17 000-strong so-called liberal Dutch Reformed congregation of Moreleta Park in Pretoria. This congregation has previously raised the ire of gay groups with their notorious H20 programme whereby homosexuals are allegedly “cured” of the sin of homosexuality. Grobler was gay, but was not asked to declare his sexual preference when he was appointed. It turned out that he was an excellent teacher, but relations turned sour after some church members discovered that he had a long-standing relationship with another man. Grobler was an employee and not a member of the congregation, but was nevertheless fired, the church citing this reason: “The congregation's opinion on sexual orientation is well known and has been published, and we cannot deviate from this point of view.”

Grobler sued and was awarded in excess of R80 000 plus costs by the High Court.

Was this judgment a clear-cut confirmation of the rule that the highest law in the land is the Constitutional Court and not the Bible? Or any other religious book?

Sadly, it was not. The court dealt with the issue by viewing purely it as an employment contract – and basically ruled against the Church because they did not ask him if he was gay before they employed him.

We are still waiting for a legal decision where religious freedom is pitted against individual freedom – or simply put: Why should churches be allowed to discriminate on the grounds of sexual orientation and other entities not?

The Grobler case was, however, a step in the right direction.

Another case in point relates to an event in 2003 when gospel singer Danie Botha said from a pulpit that “all gay people are going to hell”. I laid a charge of discriminatory and/or hate speech with the South African Human Rights Commission, which they declined to investigate, as we have seen many times with our beloved SAHRC – as recently as the case of Jon Qwelane when he equated gays to animals. After many years we are still back on square one after Qwelane got the judgement rescinded on the grounds of his being out of the country. As was said at the time,  what would have happened if Botha had said all people of San origin are going to hell for praying to their ancestors?

The mind boggles.

Of course religion and gay rights have been at odds – all the main Abrahamic religions (Islam, Judaism and Christianity) condemn homosexuality in one way or another – or at least, the modern interpretation of it. Many scholars would, however, disagree. Repeated translations of old texts have in many instances altered the original meaning. Religion, it seems, can be changed and manipulated to suit the personal value systems of those who are its followers.

In an interesting development it was reported by Pink News from the United Kingdom that “Religious groups are to be forced to accept gay youth workers, secretaries and other staff under new anti-discrimination laws.”

Previously, all roles necessary for the “purposes of an organised religion” were exempt. However, the new Equality Bill in the UK now applies this only to those who lead in churches, or spend the majority of their time teaching church doctrine, such as preachers, bishops and the like. Most other church employees, such as our music teacher Mr Grobler, may not be discriminated against.

What the main religions often disregard is that there are billions of others who do not believe the way they do. For an atheist the whole debate is meaningless. For him or her, God does not exist, there is no sin as described by church doctrine, and “heaven” and “hell” are concepts used by the likes of Bryan Adams and Meatloaf in the lyrics of the songs they sing.

For mainstream religious types, “gay churches” such as our own Reforming Church, Agalia Ministries and MCC, are anathema. Their right to exist is sometimes called into question. They, of course, have the exact same right of existence as any other church under our Constitution.

What we need in South Africa is a court ruling by the Constitutional Court, or at least a law, that clearly states that the supreme authority of this land is, in fact, the law and not doctrine and that religion is bound by all of it and not just those sections these religions seem to deem fit.