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The religion of law

October 2014

“If law is a machine we are the ghosts that inhabit it and give it life. We are animated by consciences that will have been shaped not only by our learning but by our varied engagements with life, by experiences both inside and outside the law.”- Albie Sachs

“You will burn in hell” is what a parent has claimed her child was told at school for not being a Christian. This, and other controversial allegations pertaining to the role of religion in schools have, once again been put in the spotlight. In an article appearing in Beeld two sisters, who attended Hoërskool Linden, claim they were defamed, insulted and taunted as ”Satanists” or “children of Satan” when they stated that they were atheists. The girls’ affidavits relate to a legal challenge brought by the Organisation for Religion Education and Democracy (the Organisation) against six schools. The Organisation contends it is unconstitutional for a public school to give preferential attention to any particular religion. The Dutch Reformed Church’s moderator, Nelus Niemandt, stated that the Constitutional Court is being called upon to provide clear guidance for South Africans.

Although alarming that these incidences still occur, 20 years after democracy, it is unsurprising that the dichotomy between law and religion remains an enigma. Recent controversy sparked by Chief Justice, Mogoeng Mogoeng, when he made his views on religion known at a speech he gave at the University of Stellenbosch, is another example of not only the difficult role that religion plays in law, but also the role that the personal beliefs of members of the judiciary play in their decision-making process. In that speech, Mogoeng said, “I believe that we only become better people if religion could be allowed to influence the laws that govern our daily lives, starting with the Constitution of any country.” In underscoring the issues that affect our society, Mogoeng noted that it is worth considering what religion can offer to a society that seems plagued with adultery, fornication and greed. In addition, he noted that personally he believed divorce should be a “last option”, but emphasised that he was not advocating a change to the Constitution.

The Chief Justice later stated that those who criticised his speech had either not read it, or had misunderstood it. In an article published on 4 June by the Mail and Guardian, the Chief Justice was quoted as saying that he would not allow his faith to override his oath to uphold the Constitution. He went on to note, however, that he did believe that “religion could hold some of the answers to the key dilemmas facing society and organised religion could do more to ensure these options were known to society”.

This begs the question; what should the role of religion be in our law? Delving deeper, should judges err on the side of caution and refrain from making their personal beliefs known? This article considers the role of religion in our constitutional democracy and, more specifically, whether it does, or should, play a role in the manner in which judges decide cases.

Religion and the Constitution
In terms of section 15(1) of the Constitution everyone has the right to “freedom of conscience, religion, thought, belief and opinion”. The jurisprudence relating to freedom of religion is limited and fact-specific. The Constitutional Court ruled in Prince v President, Cape Law Society & Others 2002 (2)SA 794(CC) that the right to freedom of religion is a right enjoyed by all persons, and embraces all religions.

Writing for the court in Lesbian & Gay Equality Coalition v the Minister for Home Affairs, Sachs’ majority judgment states: “It is one thing for the court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution.”

In the case of Christian Education South Africa v Minister of Education 2000 (10)SA 757(CC), the Christian Education Schools claimed that it was their right, as part of their religion, to use corporal correction, notwithstanding that section 10 of the South African Schools Act 84 of 1996 provides that any person who administers corporal punishment at a school to a learner is guilty of an offence. The main issue that the court was called upon to consider was which acts are religious and subject to protection in terms of the Bill of Rights, and which are secular and may be subject to regulation. In analysing whether the limitation on the constitutionally enshrined rights was justified, the court had to engage in a proportionality analysis and consider the comprehensive process of eliminating state-sanctioned use of physical force as a method of punishment. The ruling by the Constitutional Court was that the school’s community could maintain the integrity of its religion at home, but not impose corporal correction in the more public environment of the schools.

In defending criticisms aimed at his speech, Chief Justice Mogoeng said that he had only used Christian references in his speech because this was the religion with which he was most familiar, but emphasised that he did not intend to “push religion down the throats of South Africans”. Mogoeng admitted that his personal views, and in particular regarding homosexuality, were in contradiction to the court’s jurisprudence. He qualified himself, however, by stating that this would not affect his ability to uphold constitutional values.

Religion and judges
In his book, The Strange Alchemy of Life and Law, Albie Sachs provides a touching recount of the “profound dilemma of conscience” he faced when being sworn in as a justice of the Constitutional Court. Sachs describes how, when undertaking to uphold the Constitution without fear, favour or prejudice he had two options of swearing the oath: by stating “I affirm” or “So help me God”. Sachs states in the book that he “is a Jew”, but goes on to note that when pressed, he would call himself a non-believer. He does not, however, shy away from the fact that throughout his time at the Constitutional Court, and as a lawyer, he was forced to actively consider the “strange connections between life and law”.

The right to freedom of religion, belief and thought, as entrenched in the Constitution, must also apply to judges, as citizens of South Africa, in their personal capacities. Sachs, while admittedly uninspired by religion, does not shy away from emphasising that judges are human beings who have lived meaningful and affected lives. “The voice we use cannot be that of a depersonalised and divine oracle that declares solutions to the problems of human life through the enunciation of pure and detached wisdom… We speak with the living voices of real protagonists who are immersed in and affected by the very processes we deal with.” Is this not true of a judge’s religious beliefs as much as of any other experiences and convictions that may shape his or her judgment? It seems unnatural, and more so in a country that has committed itself to righting the wrongs of past experience, to expect those men and women in the highest position of decision-making to separate themselves from the core of their humanness and the morals that guide them, regardless of whether this guidance is founded on religion.

It has been argued that it goes beyond the scope of the judiciary to allow their personal religious beliefs to influence the enforcement of the constitutional rights of others. This cannot be denied. Judges are called upon to apply the law, to make decisions that are aligned with our Constitution and in doing so, to be objective. However, they are not asked to put aside their humanity. Applying the rights and principles entrenched in the Constitution and arriving at a decision cannot be described as anything but a process, a process that requires both “humanness” and consideration of the facts at hand.

This article has considered the jurisprudence of the Constitutional Court in regard to the right to freedom of religion as well as the difficult position in which judges find themselves in drawing the fine line between a personal religious following and allowing these views to inform their decisions. What is imperative is that they are able to uphold the law and the values enshrined therein, without allowing their personal beliefs to cloud their judgment and responsibility to all citizens whose rights are enshrined in the Constitution.

In the Hoërskool Linden matter, the courts will be called upon to provide strict guidance as to the application of section 15 of the Constitution. In doing so, it is to be hoped that law and religion can find a common ground where both respect, but not impose themselves upon each other.

The team

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