Cape Town - The Methodist Church did not have a rule prohibiting its members or ministers from marrying someone of the same sex, the Western Cape High Court heard on Tuesday.
Annemarie de Vos said the church only recognised heterosexual marriages, but this did not mean her client, Ecclesia de Lange, 43, contravened the church's laws and disciplines.
“The decision by the church... was unconstitutionally unfair. As long as there is no specific rule by the church forbidding same-sex marriages, she's entitled to enter into a marriage.
“How do they justify discrimination if they don't know it's right or wrong?... .You can't discriminate if you can't decide.”
De Lange was ordained as a minister in the church in 2006. In December 2009 she announced to the church her intention to marry her woman partner.
Two disciplinary committees found her guilty of contravening the church's policies, practices and usages, and she was discontinued as a minister. This meant she did not lose her position, but she could not exercise any ministerial powers and did not receive financial compensation.
After numerous delays, the parties concluded an agreement for arbitration in June 2011.
De Lange since approached the court to ask for the church's decision to be set aside, to be re-instated and compensated retrospectively, and to bypass the arbitration process.
She contends the arbitration agreement was one-sided and that the arbitrator was a member of the church and thus not objective.
The church's legal team argued it had a rule preventing any of its members from taking a “positive step” towards same-sex marriages, until a final policy decision had been made on the sensitive matter.
Isabel Goodman said the church's conference had been grappling with whether to recognise same-sex marriages since 2000.
“The church has therefore provided platforms for debate and engagement, allowing the process to unfold in a controlled environment conducive to reconciliation of divergent doctrinal beliefs, and in line with the church’s commitment to open and ongoing discussion, balanced and considered decision-making.”
Goodman said De Lange breached the oath she took to accept and obey the conference's decision. She had known such a rule existed by being a member and a minister, yet chose to contravene it anyway.
Goodman asked the court to be aware the church was entitled to make decisions to safeguard its members and doctrinal beliefs. It was caught in the careful act of balancing constitutional rights and religious freedom.
The church asked for the matter to be referred for arbitration, instead of being considered by a court.
It had appointed Gerald Bloem, a senior counsel of the Grahamstown Bar, to independently weigh the merits of the case as an arbitrator.
Goodman asked for De Lange's application to be dismissed with costs, especially since she had since divorced.
“A minister who is involved in divorce proceedings is immediately suspended pending an investigation and possible disciplinary proceedings... .In those circumstances an order of reinstatement is futile, and impedes the church’s ability to discipline its ministers.”
Judge Anton Veldhuizen reserved judgment. - Sapa