Law, Religion, Constitution by W. Cole Durham Jr. & Silvio Ferrari & Cristiana Cianitto & Donlu Thayer

Author:W. Cole Durham, Jr. & Silvio Ferrari & Cristiana Cianitto & Donlu Thayer
Language: eng
Format: epub
Publisher: Ashgate Publishing Limited
Published: 2013-10-16T04:00:00+00:00

Should Religious Organizations Be Allowed to Discriminate? The case of Johan Strydom

In Strydom, the court found that the Dutch Reformed Church unfairly discriminated against a gay music teacher, because the church could not prove that Mr. Strydom was involved in religious instruction. His contract was terminated on the basis that he was involved in a homosexual relationship. The decision was criticized in that religious freedom did not enjoy priority above the individual’s right to equality.

The court in Strydom referred to the important and interesting American case of Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints v. Amos.45 In Amos certain provisions of the Civil Rights Act46 were at stake, as understood to mean that religions institutions were allowed to discriminate on grounds of religion in their employment and labour relations, irrespective of whether an employee was in fact performing a religious function or not.47

This extended definition was challenged on the basis of the ‘establishment clause’ and the court affirms that the exception applies to all non-profit activities of the organization and emphasises the fact that ‘it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious.’48 It is not that easy, however, to draw the line between ‘religious’ and ‘secular,’ and it would be understandable that a religious institution ‘[would] be concerned that a judge would not understand its religious tenets and sense of mission and possible liability might affect the way an organization carried out what it understood to be its religious mission’.49

Lenta is, however, of the opinion that it does not mean that ‘religious associations should not be required to demonstrate to the court that the position related to the unfair discrimination is sufficiently closely connected to the doctrinal core of the church,’ which the church had not sufficiently proved in the view of the court in Strydom.50 He is further of the view that religious institutions should not be allowed to discriminate ‘unless the job in question is sufficiently closely connected to the doctrinal core of the religion’. He therefore supports the view that the court’s decision in Amos was incorrect.

This approach by the courts ‘to delve (carefully) into questions of core tenets of belief – and decide which beliefs are trumped and which beliefs are not’ is, however, not shared by Woolman,51 who rather supports the view of Justice Brennan in Amos that ‘religious organizations have an interest in autonomy in ordering their religious affairs.’52 Justice Brennan upholds the constitutionality of Section 702, ‘covering all types of church employee, no matter what the job, appropriately balances the right of employees to religious liberty and the autonomy of religious organizations’.53 Mr. Strydom worked as an independent contractor in the so-called ‘kunste-akademie’ of the church, teaching music to students. He was dismissed from his post as lecturer in the church’s Arts Academy in July 2005, and instituted proceedings under the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (PEPUDA).

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