Theme 9 Notes: Freedom of Religion, Belief, and Opinion PDF

**[Theme 9: Freedom of religion, belief and opinion]** **[NB ]** - S15 -- freedom of religion, belief and opinion - S31 -- cultural, religious and linguistic communities - S9 -- right to dignity - S16 -- freedom of expression - S18 -- freedom of association - Corporal punishment c...

**[Theme 9: Freedom of religion, belief and opinion]** **[NB ]** - S15 -- freedom of religion, belief and opinion - S31 -- cultural, religious and linguistic communities - S9 -- right to dignity - S16 -- freedom of expression - S18 -- freedom of association - Corporal punishment case -- Mogoengmogoeng - Reasonable accommodation - Communal element in relation to the right to religious freedom - Freedom of religion versus equality/Freedom of expression/ Freedom of Association/Cultural, religious and linguistic communities - direct and indirect coercion in relation to religion - Strict separation between state and faith? - Differences and similarities in the Prince cases - PS. Analyse the preambles of the current constitution and the previous ones in relation to religion - Case law: - *S v Lawrence *1997 (4) SA 1176 (CC) - *MEC for Education, KwaZulu Natal and Others v Pillay *2008 (1) SA 474 (CC) - *Christian Education *2000 (4) SA 757 (CC) - *Organisasie vir GodsdiensteOnderrig en Demokrasie v Laerskool Randhart and Others *2017 (6) SA 129 (GJ) - *Prince v President, Cape Law Society and Others *2002 (2) SA 794 (CC) and *Minister of Justice and Constitutional Development and Others v Prince* (Clarke and Others Intervening) 2018 (6) SA 393 (CC) (right to privacy, fit and proper person and freedom of religion)). (The* Prince *Cases) **[Introduction ]** - How many constitutions has SA had - Depends on how you understand the legitimacy of those constitutions - BUT -- in the technical sense you cant ignore the practical implications of the mere existence of these constitutions - There is no concrete answer to this question - The Constitution of the Union of South Africa 1910 - The Constitution of the Republic of South Africa 1961  - The Constitution of the Republic of South Africa 1983 - The constitution of the Republic of South Africa 1996 -- preamble - Mentions religion + Christianity  - Religion is frequently included in Constitutions -- particularly in the preambles - Prior to 1994 Christianity was SA's unofficial state religion - The pre-1994 constitution and a host of legal rules expressly endorsed the tenets of the Christian faith - BUT even the articulation of Christian belief wasn't 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 - Christian groups and leaders that regarded their faith as requiring opposition to tyrannical and unjust rulers often suffered government reprisals - In our current constitutional state -- Christianity still plays a major role when one looks at our national anthem, the preamble of the constitution + the oath provided for in schedule 2 to the Constitution - The SA 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 s15 - The respect for freedom of religion upholds both the right and the value of human dignity -- which has been referred to as the cornerstone of our democracy - Free and voluntary observance - No strict separation between faith and state 9 - To cater to freedom of religion + the right to choose - To prevent state intervention -- cant force religion on people **[Section 15]** **[S15(1) ]** - This subsection is limited to religion - A wide range of other relevant interests are also safeguarded - There is no compelling need to define religion precisely in order to decide who has the right - What religion doesn't protect may be protected as conscience, thinking, belief and opinion - S15 must be interpreted and balanced with related rights such as s9, 16, 18 and 31 - Freedom of expression is NB as one person cant form a religion -- have to express beliefs to multiple people - Have to prove that you are part of that religious group - Have protection under it starts undermining the rights of the individual **[Aspects of the right to freedom of religion ]** - 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) - MEC for Education, KwaZulu Natal and Others v Pillay 2008 (1) SA 474 (CC) para 47 - The alleged grounds of discrimination are religion and/or culture - It is important to keep these two grounds distinct - Without attempting to provide any form of definition, religion is ordinarily concerned with personal faith and belief, while culture generally relates to traditions and beliefs developed by a community - However, there will often be a great deal of overlap between the two; religious practices are frequently informed not only by faith but also by custom, while cultural beliefs do not develop in a vacuum and may be based on the community's underlying religious or spiritual beliefs - Therefore, while it is possible for a belief or practice to be purely religious or purely cultural, it is equally possible for it to be both religious and cultural. **[The notion of 'reasonable accommodation']** - 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 - BUT 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 - Religion's legal and constitutional accommodation may be a difficult issue, especially in multireligious 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 practices that are inconsistent with the worldview endorsed by the Bill of Rights - 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 - BUT Such accommodation must nonetheless adhere to the principles of an open and democratic society, as envisioned in s36 - In Christian Education 2000 (4) SA 757 (CC) para 32 the CC 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" - 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"  **[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 **[Section 15(2)]** - s15(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 GodsdiensteOnderrig 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) - BUT as the applicants did not allege that the Gauteng Act was unconstitutional, this comment by the court was merely obiter - 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 s29(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 S.A, 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 **[Section 15(3) ]** - The subsection does not preclude statutory recognition of religious or traditional family law - BUT 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 **[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." **[Case law ]** - MEC for Education: KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC) - Christian Education 2000 (4) SA 757 (CC) - Prince v President, Cape Law Society and Others 2002 (2) SA 794 (CC) and Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening) 2018 (6) SA 393 (CC) (right to privacy, fit and proper person and freedom of religion). (The Prince Cases) - Hay v B **[Malan Notes]** **[Introduction ]** - Constitutions often contain references to religion especially in their preambles - The preamble to the South African Constitution concludes with the words "May God protect our people" and "God bless South Africa" and equivalents in all the other official languages - The oath (for which there is also the alternative of a solemn confirmation) to be taken by the president, ministers etc, provided in Schedule 2 to the Constitution is also inherently religious in nature - The right to religious freedom and other rights of the kind provided for in s15 of the Constitution (and in many in other constitutions and human rights instruments) may lead among other things to the following constitutionally related questions: - To what extent should religious-based practices be accommodated by the law of the state? - Should people professing a certain religion be exempted from rules otherwise applicable in order to accommodate the religion in question? - To what extent, if at all, should there be autonomy for religious bodies to make and administer their own internal rules and practices be recognised even though that might be incompatible with constitutional rights or provisions in legislation? - Another question pertinent to the right to freedom of religion relates to whether or not there should be a strict distinction between the state and religion: should the state keep an equal distance from all religion, or should it recognise all and treat them equally? **[Section 15(1) ]** -  - Note that this subsection is not restricted to religion - Many other related interests are also protected - Hence, there is no pressing need to define religion in precise terms in order to determine to what the right applies - What is not protected under religion may enjoy protection as conscience, thought, belief and opinion - The right to religion (and the other interests mentioned in section 15(1)) must be interpreted and balanced with reference to relating rights: - section 9(3) and (4) (the right against unfair discrimination; section 16 (expression); section 18 (association); section 31, more specifically section 31(2) (the right of people belonging to cultural, religious and linguistic communities) - 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 includes the rights to change one's (religious) convictions, to promote and teach them and to assemble with others of the same conviction - It also includes the negative element that people may not be forced to act contrary to their convictions - It is difficult to distinguish religion from culture (and the customs that are followed as part of a culture.) Religious practices are frequently informed not only by faith but also by custom. See the observations by the Constitutional Court in this regard in MEC for Education, KwaZulu Natal and Others v Pillay 2008 (1) SA 474 (CC) para 47 **[The notion of "reasonable accommodation"]** - The legal and constitutional accommodation of religion can be a thorny question, particularly in multi-religious societies - Religious communities and people belonging to religious communities often insist on following practices that are somehow incompatible with the general law of the state - One of the most crucial questions in relation to religion is therefore to what extent the law of the state, among other things by constitutional arrangements should accommodate such claims to be treated differently - Religion and belief often involve discrimination or other practices that might not be consonant with the world view endorsed by the Bill of Rights - Relevant in this context is the notion of so-called reasonable accommodation - Accordingly, the claims of persons belonging to religious communities that deviate from the commitments of the Bill of Rights are somehow inconsistent with the other rights in the Bill of Rights may be accommodated - BUT such accommodation must still comply with the values of and open and democratic society as envisaged in section 36 - In Christian Education 2000 (4) SA 757 (CC) para 32 the CC 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." - 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 religious freedom and accompanying practices may be incompatible with various other constitutional rights - Viewed from an opposite angle many legal rules might possibly restrict the right to religious freedom - In adjudicating disputes regarding the right to religious freedom the focus would first be on whether the belief (and practices) that the claimant seeks to protect are crucial for the religion in question - Do these beliefs and practices go to the core of the religion in question? - The courts ask whether reliance on the right to religion is genuinely based on the religious conviction concerned and whether the claim of the right to religion is sincere - This will have to be balanced with the extent to which that belief invades the constitutional rights of others and with legitimate public concerns. We mention a number of examples of cases - Examples: - In Christian Education 2000(4) SA 757 (CC) - it was argued that corporal punishment should constitutionally be protected (retained) as part of a particular Christian conception of discipline - It was decided, however, that the prohibition of corporal punishment in independent schools does not unduly invade the right to religious freedom, particularly as the limitation (the prohibition) seeks to protect other rights (dignity and section 12(1)(c)) - Recently in Freedom of Religion South Africa v Minister of Justice and Constitutional 78 Development and Others 2019 (11) BCLR 1321 / 2020 (1) SA 1 (CC) - the Constitutional Court made a similar ruling with regard to corporal punishment administered by parents - 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. - One of the aspects of the right relates to the autonomy of religious bodies and thus the power of such bodies to decide on their own doctrine (belief system), internal organisation and practices - In particular cases these practices might be discriminatory, yet still constitutional because, amongst other things, these bodies are voluntary - In Taylor v Kurtstag 2005 (1) SA 362 (W) - the internal arrangements of a religious / cultural organisation to maintain the integrity of the association was recognised - In Gaum and Others v Van Rensburg NO and Others \[2019\] 2 All SA 722 (GP) - the Court in a very controversial decision in a different set of facts/, relating to the eligibility of homosexual persons to occupy religious offices in the Dutch Reformed Church came to an opposite conclusion - In these cases the right overlaps with the right to freedom of association and cultural rights in section 30, 31 - The right also focuses on the element of liberty because the choices that people exercise in this regard enhance the significance of autonomy and identity, thus also confirming the constitutional commitment to diversity - MEC Education v Pillay 2also referred to above - 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 - The prohibition constitutes an infringement of the right to freedom of religion but found by the Constitutional Court with a small margin to be justifiable under the limitation clause - This prohibition of the possession of dagga is arguably overbroad - There might be less restrictive ways short of a general prohibition or a blanket prohibition, but these rules the Court were too difficult to administer - Hence, in practice less restrictive means were held not to be available. Consequently, the infringement was held justifiable under section 36(1) - Sixteen years later in Minister of Justice and Constitutional Development v Prince and Others 2018 (10) BCLR 1220 / 2018 (6) SA 393 (CC) the Constitutional Court reached an opposite conclusion **["Equality of religions"]** - In the United States the so-called establishment clause in amendment 1 to its Constitution provides: "Congress shall make no law respecting an establishment of a religion..." - This provision has been interpreted broadly, so as among other things to forbid prayers in state-aided schools, the argument being that such permission would boil down to the state identifying itself with a particular religion - There is no similar provision in the South African Constitution and both the provisions of s15 and case law provide for a different kind of relationship between the state and religion - The leading judgment at the moment is S v Lawrence 1997 (4) SA 1176 (CC) referred to above, that endorses the idea of equitable treatment of all the religions by the state and no specific preference for a specific religion - Hence, there is no strict separation (wall of separation) between religion and the state as in the case of the US **[Section 15(2)]** - - In Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others 2017 (6) SA 129 (GJ) - the Court by implication attached a restricted interpretation to this right, in that the authority governing bodies of public schools to choose the schools' religious ethos was restrictively construed - It is to be noted that this provision relates to observance and not to religious education - The position regarding religion at state and state-aided schools is different from that of the US and eg France where strict neutrality is maintained **[Section 15(3)]** -  - **[Communal element in the right to religious freedom ]** - There is a distinctively collective aspect to the right to freedom of religion - An individual can often not meaningfully exercise a right on his / her own - Meaningful exercise of the right requires it to be exercised with others. (See also the last study theme.) - For that reason, it is clear that this right also accrues to juristic persons - Section 31 emphasises the collective (communal) aspect of section 15 - Christian Education v Minister of Education 2000(4) SA 794 (CC) para 19 - Section 31 reads as follows: