Pretoria - # LOVE is LOVE was the overall message conveyed by members of the gay and lesbian community on Tuesday during the legal challenge in which certain members of the Dutch Reformed Church challenged the Church's change of heart regarding same-sex unions.
The one side of the public gallery in the Gauteng High Court, Pretoria, was taken up by various of the church fathers and leaders. The other side was a display of black T-shirts bearing the message of love, depicting illustrations of heterosexual and homosexual couples holding hands.
The overall theme of the love message bearers was “don’t unfairly discriminate against anyone, but embrace people for who they are”. The message on the side of the Church leaders was that they are not preventing same-sex unions in general. But it is not allowed in their Church.
A full bench of three judges was asked by gay Dutch reformed member Laurie Gaum, his father Frits Gaum, a well-known cleric, and others to overturn the Church’s decision made in 2016, in which it went back on its word regarding same-sex unions.
The Church made headlines when it in 2015 announced that its various congregations could decide for itself if it wanted to give its blessing to same-sex unions. A year later, following a lot of pressure from some of its members, it announced that a gay or lesbian person can only be a minister if he or she is celibate. Ministers were also no longer allowed to solemnise same-sex civil unions.
Advocate Schalk Burger SC, for the Church, said this decision was not taken lightly. He argued that since 2004 its general synod confirmed its stance against gay unions in the Church. It changed its stance in 2015, but due to a lot of opposition from its members, it decided during a special sitting of the synod, to revert back to its previous stance.
He said some said the embracing of same-sex unions was based off false doctrine and unbiblical, while others embraced it. There was a vote and it was decided against these unions. Burger said their 2015 decision was never cast in stone.
Advocate Jeremy Gauntlett SC argued on behalf of Gaum and the other applicants that the stance of the Church is that if its gay or lesbian members were not happy with the 2016 decision, they could leave.
He said the Church is making the applicants out to be “incorrigible bigots”, while all they are trying to do is to protect their constitutional rights.
Gauntlett argued that the Church is hiding behind the argument of freedom of religion, while this is trumping the rights of the applicants. According to him, it is clear that the Church is discriminating against some of its members' sexual orientation. This, he said, could be compared to racial and other discrimination.
Gauntlett further argued that the Church cannot live in its own little world and privatise discrimination, as this was clearly against the Bill of Rights.
The debate heated up after lunch, when Burger argued that there is no prohibition against same-sex marriages, as long as it did not happen in the Dutch Reformed Church.
This caused Judge Joseph Raulinga to question several times whether this is not discrimination. He asked whether it was not discrimination if heterosexual people were embraced by the church, while same-sex unions were turned away.
Burger answered that this was not unfair discrimination. He said there was in any event discrimination on both sides. “If the applicants succeeded in their application, it would mean that the Church did not fulfil what they feel is the will of God,” he responded. He further argued that if the court ruled in favour of the applicants, it will have far-reaching ramifications - even for other churches. “Most of the Churches will be unhappy,” he said.
According to Burger, this court, in any event, did not have the jurisdiction to rule over the matter. He said it should have gone to the Equality Court.
Judgment was reserved.