Bilchitz on “Religious Associations” and Discrimination

David Bilchitz (University of Johannesburg) has posted Should Religious Associations Be Entitled to Discriminate?  The piece is an interesting intervention dealing with South African constitutional law and provides a counterpoint to some of the current debates involving the ministerial exemption in this country.  I have put the term “religious associations” in quotation marks because it is not the way I am accustomed to refer to religious institutions, though I recognize that the South African and U.S. contexts are probably very different (and I believe that there are some scholars in this country who might favor this terminology).  The author takes equality to be the overriding value in these kinds of cases — see, e.g., footnote 23 on page 8, where he cites to a law review piece for the proposition that “even in the United States” some have argued that “equality [should] be regarded as the value to which primacy should be attached.”  The abstract follows.  — MOD

Should religious associations be allowed to engage in acts of discrimination on grounds prohibited in the Constitution where they claim their religious doctrines require it? This paper argues for this question, in general, to be answered in the negative and seeks in the process to explore the tension between advancing equality in South African society whilst recognizing the autonomy of private associations. The Strydom case – dealing with the dismissal of a gay music teacher from a church on grounds of his sexual orientation – provides the backdrop for an analysis of these issues. The paper critiques the work of two authors – Patrick Lenta and Stu Woolman – who argue that greater emphasis should be placed on freedom of association in these circumstances even where such associations promote values that are in direct contradiction to those contained in the Constitution. For Lenta, the core concern relates to ‘protecting diversity’ whilst, for Woolman, it involves ensuring a society with a high quantity of ‘social capital.’ I shall argue that both authors pay insufficient attention to the South African context which provides a strong case for a presumption in favour of equality and non-discrimination. Moreover, an engagement with the history of religion of South Africa provides strong reasons to avoid simply leaving a private religious domain alone that is at odds with the political morality of the state. I shall also seek to show that the very values that both Lenta and Woolman are concerned with do not unequivocally support their conclusions and in fact provide a case for the contrary point of view. The arguments I provide seek to establish that courts should refuse to condone discrimination on prohibited grounds even where this occurs on the basis of religious doctrines. Ultimately, the paper argues for South Africa to adopt an egalitarian form of liberalism which recognizes limits on the freedom of religious associations to discriminate as this is necessary to ensure respect for the dignity of all individuals in the polity.

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