Study Theme 11: Freedom of Religion, Belief and Opinion PDF

STUDY THEME 11 FREEDOM OF RELIGION, BELIEF AND OPINION MS. NEL 1. INTRODUCTION How many Constitutions has South Africa had? • It depends on how you understand the legitimacy of those Constitutions. • However, in the technical sense you cannot ignore the practical implications of the mere existe...

STUDY THEME 11 FREEDOM OF RELIGION, BELIEF AND OPINION MS. NEL 1. INTRODUCTION How many Constitutions has South Africa had? • It depends on how you understand the legitimacy of those Constitutions. • However, in the technical sense you cannot ignore the practical implications of the mere existence of these Constitutions. • Therefore, there is no concrete answer to this question. 1. INTRODUCTION The Constitution of the Union of South Africa 1910 1. INTRODUCTION The Constitution of the Republic of South Africa 1961 1. INTRODUCTION The Constitution of the Republic of South Africa 1983 1. INTRODUCTION The Constitution of the Republic of South Africa, 1996 1. INTRODUCTION Religion is frequently included in Constitutions, particularly in the preambles. Prior to 1994 Christianity was South Africa’s unofficial state religion. • The pre-1994 Constitution and a host of legal rules expressly endorsed the tenets of the Christian faith. • However, even the articulation of Christian belief was not unfettered under Apartheid. • The brand of Christianity during the Apartheid regime favoured by the state reflected a theology that advocated obedience to the government of the day. • As a result, Christian groups and leaders that regarded their faith as requiring opposition to tyrannical and unjust rulers often suffered government reprisals. 1. INTRODUCTION In our current constitutional state, Christianity still plays a major role when one looks at our national anthem, the preamble of the Constitution and the oath provided for in Schedule 2 to the Constitution. • The South African Constitution’s preamble finishes with the words “May God protect our people” and “God bless South Africa”. The final Constitution includes the right to freedom of religion, belief and opinion in section 15. • The respect for freedom of religion in turn upholds both the right and the value of human dignity, which has been referred to as the cornerstone of our democracy. SECTION 15 (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion. (2) Religious observances may be conducted at state or state-aided institutions, provided that— (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary. (3) (a) This section does not prevent legislation recognising— (i) marriages concluded under any tradition, or a system of religious, personal or family law; or (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. (b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution. 2. SECTION 15(1) It should be noted that this subsection is limited to religion. A wide range of other relevant interests are also safeguarded. As a result, there is no compelling need to define religion precisely in order to decide who has the right. What religion does not protect may be protected as conscience, thinking, belief and opinion. Section 15 must be interpreted and balanced with related rights such as sections 9, 16, 18 and 31. 2.1 ASPECTS OF THE RIGHT TO FREEDOM OF RELIGION In S v Lawrence 1997 (4) SA 1176 (CC) para 92 the Court identified with reference to the Canadian judgment in Big M Drug Mart the following aspects to this right. The right to – • have (entertain) religious beliefs; • to declare religious beliefs openly and without fear of hindrance or reprisal; • the right to manifest religious belief by worship and practice or by teaching and dissemination. It also involves the right to alter one’s (religious) views, promote and educate them and gather with others who share those ideas. It also contains the negative element of individuals not being obliged to act against their convictions. It is difficult to separate religion from culture (and the customs that are observed as part of a culture). See MEC for Education, KwaZulu Natal and Others v Pillay 2008 (1) SA 474 (CC) para 47. 2.2 THE NOTION OF “REASONABLE ACCOMODATION” This concept exists in various areas of the law • International Law • Human Rights Law • Constitutional Law The application of the concept will vary depending on the context in which it is applied but in general, the concept refers to: • An adjustment made in a system to accommodate or make fair the same system for an individual based on a proven need. However, in the context of the rights in section 15. Reasonable accommodation refers to: • Instances where the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardships or expense in order to allow all people to participate and enjoy all their rights equally. 2.2 THE NOTION OF “REASONABLE ACCOMODATION” Religion’s legal and constitutional accommodation may be a difficult issue, especially in multi-religious nations. Potential obstacles emerge from this: • Religious communities and members of religious communities frequently insist on practices that are incompatible with normal state legislation. • Some religious norms and practices are archaic and not compatible with contemporary values behind our democracy • Some of these cultures and religious observances also endorses things that go against the states mandate to protect, promote and respect human rights. One of the most important concerns in connection to religion is how far the legislation, including constitutional provisions, should accommodate such demands to be treated differently. Religion and belief are frequently associated with discrimination or other practises that are inconsistent with the worldview endorsed by the Bill of Rights. 2.2 THE NOTION OF “REASONABLE ACCOMODATION” As a result, claims made by members of religious groups that diverge from the Bill of Rights’ obligations and are in some way inconsistent with the other rights may be accepted. Such accommodation, however, must nonetheless adhere to the principles of an open and democratic society, as envisioned in section 36. In Christian Education 2000 (4) SA 757 (CC) para 32 the Constitutional Court stated in this regard as follows in relation to the administering of corporal punishment in schools: “In the present matter it is clear that what is in issue is not so much whether a general prohibition on corporal punishment in schools can be justified, but whether the impact of such a prohibition on the religious beliefs and practices of the members of the appellant can be justified under the limitations test of s 36. More precisely, the proportionality exercise has to relate to whether the failure to accommodate the appellant's religious belief and practice by means of the exemption for which the appellant asked, can be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality.” 2.2 THE NOTION OF “REASONABLE ACCOMODATION” In para 35 of MEC Education v Pillay 2008 (1) SA 474 (CC) the Court stated in the same vein: “The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the State should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.” The CC stressed the principle of reasonable accommodation especially in the context of religion. • In para 73 it is stated that reasonable accommodation is the idea that “the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardships or expense in order to allow all people to participate and enjoy all their rights equally.” 2.2 THE NOTION OF “REASONABLE ACCOMODATION” From a different perspective, several legal laws may potentially limit the right to religious freedom. In deciding disputes over the right to religious freedom, the focus would be on whether the claimant’s beliefs (and practices) are critical for the religion in issues. • Are these ideas and practices important to the religion in question? The courts consider whether reliance on the right to religion is legitimately based on the religious faith at issue, as well as whether the right to religion claim is genuine. This must be measured against the amount to which the belief infringes on the constitutional rights of others, as well as valid public concerns. See notes for case examples. • In Hay v B 2003 (3) 492 (W) parents’ refusal of a blood transfusion for their terminally ill child on religious grounds was found to be unjustifiable. • Prince v Cape Law Society 2002 SA 784 (CC) dealt with the prohibition of the possession of dagga, specifically as far as the prohibition also applied to Rastafarians who use dagga as part of their religious practices. Justice Sachs concludes that such a contextual approach revealed the necessity for reasonable accommodation of diversity as the Constitution was founded on tolerance and respect for the dignity of everyone. 2.3 ”EQUALITY OF RELIGIONS” The so-called establishment clause in Amendment 1 of the United States Constitution states: “Congress shall make no law respecting an establishment of a religion...” • This rule has been liberally read, to prevent prayers at state-aided schools, with the argument that such approval would amount to the state aligning itself with a specific religion. There is no such provision in the South African Constitution, and both section 15 and case law provide for a distinct relationship between the state and religion. The leading judgment at the time is S v Lawrence 1997 (4) SA 1176 (CC) which affirms the principle of the state treating all religions equally and with no bias for one religion over another. There is no rigid division (wall of separation) between religion and the state as there is in the US. 3. SECTION 15(2) Section 15(2) especially addresses the issue of religious observances in state institutions, specifically in public schools. The Court by implication attached a restricted interpretation to this right in Organisasie vir Godsdienste- Onderrig en Demokrasie v Laerskool Randhart and Others 2017 (6) SA 129 (GJ), in that the authority of governing bodies of public schools to choose the schools’ religious ethos was restrictively construed. • The court noted that as section 7 of the Schools Act mirrored section 15(2) of the Constitution, conduct through the applicable legislation instead of using the Constitution directly, in accordance with the principle of subsidiarity. • The court decided to observe both the Gauteng Act and the Western Cape Act. The Gauteng Act regulated both “religious practices” (which the court held to be the same as religious observances) and “religious policy”. • The court held that the inclusion of religious policy meant that the Gauteng Act extended beyond section 15(2) of the Constitution and also regulated aspects of section 15(1). • However, as the applicants did not allege that the Gauteng Act was unconstitutional, this comment by the court was merely obiter. 3. SECTION 15(2) It should be highlighted that this section only applies to observance and not religious education. Section 15(2) may not be used for private (independent) schools. They have greater freedom in this regard, and their position is controlled by Section 29(3). The position regarding religion in state and state-aided schools differs once again from that of the US and, for example, France, where total neutrality is maintained. • In the US, religious observances may be conducted at state institutions provided that attendance at them is free and voluntary and that they are conducted on an equitable basis. • This means that attendance must be free from both direct and indirect coercion. Indirect coercion would be present if people were made to feel isolated or judged in their decision not to attend the religious observance, perhaps so much so that they consider attending just to prevent the feeling of otherness. 4. SECTION 15(3) The subsection does not preclude statutory recognition of religious or traditional family law. However, the subsection contains a rider that any such legislation must be consistent both with section 15 and with the Constitution. Only one statute of the kind envisaged in section 15(3) has been enacted: the Recognition of Customary Marriages Act 120 of 1998. 5. COMMUNAL ELEMENT IN THE RIGHT TO RELIGIOUS FREEDOM The right to religious freedom has a specific collective component. Individuals are frequently unable to meaningfully exercise their rights on their own. A meaningful exercise of the right necessitates the participation of others. As a result, it is obvious that this right also applies to juristic persons. Section 31 highlights section 15’s collective character. The relationship between the two provisions has been set out by Ngcobo J in Prince v President, Cape Law Society as follows: “…[sections] 15(1) and 31(1)(a) complement one another. Section 31(1)(a) emphasises and protects the associational nature of cultural, religious and language rights. In the context of religion, it emphasises the protection to be given to members of communities united by religion to practice their religion.” Section 31, read with section 18, strengthens, rather than undermines, the force of the right to religious freedom enshrined in section 15(1).