Leila Samodien and Rebecca Jackman
CHURCHES should have the right to settle internal disputes without the court’s interference, the Supreme Court of Appeal has said in dismissing the appeal by a gay minister who was axed after announcing her same-sex marriage from the pulpit.
“The determination of who is morally and religiously fit to conduct pastoral duties or who should be excluded for non-conformity with the dictates of the religion fall within the core religious functions,” the SCA said.
The proper respect for freedom of religion meant courts were precluded from pronouncing on matters of religious doctrine.
Ecclesia de Lange was “discontinued” from the ministry of the Methodist Church of Southern Africa in 2010 after being suspended in 2009 when she announced her same-sex nuptials.
She went to the Western Cape High Court, asking for reinstatement, but lost.
She then appealed to the SCA – which has found it should become involved only “where it was strictly necessary to do so”.
“Even then, it should refrain from determining doctrinal issues in order to avoid entanglement,” the judgment said, citing examples in the UK, Canada, Australia and elsewhere.
In the UK, for example, courts had also determined that “the decisions of ecclesiastical courts are generally not amenable to correction or challenge in secular courts”.
Gay rights groups have hit out at the finding, saying “it sent out a harmful message of intolerance, not only to LGBTI clergy, but church congregants and community members”.
De Lange said yesterday that she and her legal team would study the judgment before deciding on the next step, such as whether to go to the Constitutional Court or return to arbitration.
Judge Visvanathan Ponnan wrote: “As the main dispute… concerns the internal rules adopted by the church, such a dispute, as far as is possible, should be left to the church to be determined domestically.
“A court should only become involved in a dispute of this kind where it is strictly necessary for it to do so. Even then it should refrain from determining doctrinal issues to avoid entanglement.”
Judge Ponnan concluded that the dispute would best be determined by arbitration.
De Lange had participated in arbitration for almost a year, but then sought to “avoid the arbitration by having the matter determined by a court”.
Bishop Ziphozihle Siwa, the Methodist Church’s presiding bishop, said he was happy with the judgment.
He believed the matter should be dealt with through arbitration since they were all members of the same church with the same understanding.
“The church is a voluntary association… In this country, we have freedom of religion and people have freedom of association. Each one of those communities has its own rules and understanding.”
Human rights organisation The Triangle Project’s research advocacy and policy manager, Ingrid Lynch, said it was “deeply worrying” that many religious institutions had not adapted to the constitution to “respond to LGBTI clergy in an affirming and welcoming manner”.
“This outcome sends a harmful message of intolerance, not only to LGBTI clergy but also to church congregants and community members that they will not be fully accepted due to their sexual orientation or gender identity.”
Desmond Lesejane, director of Sonke Gender Justice’s social and structural drivers programme, questioned whether churches should be allowed to operate outside the constitution. Doing so paved the way for potentially harmful religious practices, including the exclusion of people for their sexual orientation.