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Dennis Davis: COMMENT, Dennis Davis and Michelle le Roux19 Mar 2008 00:00
“Into this noise enters the Bill of Responsibilities to give our children new words and a new spirit; the words and spirit of giving and contribution, of accountability and decency, of tolerance and understanding, of integrity and loyalty, of kindness and compassion.”—Chief Rabbi Warren Goldstein
The chief rabbi’s confident claim of the importance of the newly published Bill of Responsibilities raises the question of the role of religion in the development of our constitutional society. The Constitution guarantees freedom of religion, as we shall show, but does religion promote the Constitution, as the rabbi claims?
The South African Constitution guarantees everyone the right to freedom of conscience, religion, thought, belief and opinion.
The clause does not simply protect religious freedom.
But, unlike the Constitution of the United States, there is no anti-establishment clause that separates the state from religious affairs. It would appear that the drafters of the Constitution were determined that it did not constitute a wall of separation between church and state.
That does not mean that the state can play no role in the religious affairs of the country, but that any action taken by the state to promote religion is subject to careful qualification.
As former chief justice Arthur Chaskalson wrote, there may be circumstances in which endorsement of religion or religious belief by the state would contravene the freedom of religion provisions an example would be where an endorsement by the state “has the effect of coercing persons to observe the practices of a particular religion, or placing constraints on them in relation to observance of their own different religion”.
As it applies to religious freedom, the content of Section 15 has been set out by the Constitutional Court as follows:
These rights, of course, are never unlimited; they can be limited by legislation. The Constitutional Court found that the freedom of religion of a Rastafarian who was denied admission as an attorney because of his use and possession of cannabis had been infringed. However, a majority of the court held that legislation admitting attorneys to legal practice could validly preclude admission to the applicant as he had breached legislation prohibiting the use and possession of cannabis.
The central difficulty with a guarantee of freedom of religion in a constitutional society is set out in the judgement of Judge Albie Sachs in the Christian education, South Africa, case: “The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not.
“Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land.”
How, then, do our courts balance the demands of a secular society with religious belief? Recently the Constitutional Court overturned a decision of the school board to prevent a learner from wearing a nose stud which she claimed was a voluntary expression of south Indian Tamil/Hindu culture. The majority of the court held that, in terms of the Constitution, a reasonable accommodation of religious practices was guaranteed because such belief was central to the identity, the human dignity and equality, of each citizen.
The case may be an easy application of the concept of reasonable accommodation. Consider the case of the Danish cartoons depicting the Prophet Muhammad or some of Zapiro’s cartoons that attack Israel. In these, the clash between freedom of expression and religious belief is far more difficult. If it is argued, as it is by many, that the Danish cartoons were a direct attack on a core of religious belief, is there a justifiable objection to the publication of a novel like The Satanic Verses?
Much of this debate has centred on the obligations of the secular community to uphold the religious beliefs of their fellow citizens. But the converse must also be asked: what are the obligations of the religious communities to our constitutional state and to a harmonisation of the Constitution with religious beliefs?
In dealing with African vernacular law, the Constitutional Court has shaped principles and rules of this body of law in the image of the Constitution, holding, for example, that the principle of patriarchy is in breach of the constitutional guarantee of equality. The same approach may well apply to religious practice—at the very least to protect those who wish to opt out of such a community.
This leads back to the Bill of Responsibilities. It is based on the old idea that rights give rise to responsibilities. However, a careful read of the different versions of the proposed Bill reveals significant omissions from the list of rights contained in the Constitution.
In dealing with the right to equality the draft document says “the right to equality places on me the responsibility to treat every person equally and fairly and not discriminate unfairly against anyone â€¦” and then lists the prohibited grounds of discrimination. In the draft available on the department of education’s website, all anti-discrimination grounds in the Constitution are covered.
However, other available drafts, also bearing the logos of the department and the National Religious Leaders’ Forum, leave out sex, pregnancy, marital status, colour, sexual orientation, age, conscience, belief and birth as prohibited grounds of discrimination. It appears that at some stage, the proposed Bill left out what could be termed some of the most controversial protected characteristics.
Does that mean that religiously inclined drafters of the Bill of Responsibilities hoped for the reasonable accommodation of those religions that are homophobic, and that the youth of South Africa would not be called on to respect equality on the grounds of sexual orientation? And why the omission of conscience and belief? Does only religious belief count?
Given the constitutional right to bodily and psychological integrity, has the section dealing with responsibilities regarding life, saturated as it is with conservative religious morality, been crafted to eschew a right to abortion?
So, while it talks about how the right to life entails a responsibility to “live a healthy life, by exercising, eating correctly by not smoking (sic), abusing alcohol, or taking drugs, or indulging in irresponsible behaviour that may result in my being infected or infecting others with communicable diseases such as HIV/Aids”, this section of the Bill fails to mention that the related constitutional section 12(2) contains the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction.
This omission is glaring in light of the challenges presented by teen-pregnancy rates—not only sexually transmitted diseases—to the quality of life of much of South Africa’s youth.
Non-discrimination on the basis of gender is mentioned, but what it means is left open. What must our children be taught regarding gender equality and those religious practices that seek to hold women subservient to men?
In our constitutional society, any clash between religion and our hard-fought rights must be resolved, including through the mechanism of reasonable accommodation. But, ultimately the Constitution governs. Its contents must be taught to all our children, undistorted by religious belief.
Dennis Davis is a Judge of the high court. Michelle le Roux is a member of the Johannesburg Bar. They are the co-authors of the forthcoming book Precedent and Possibility: The (Ab)use of Law in South Africa
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