SA Church ordered to solemnise gay and lesbian marriages by court

The Gauteng High Court in Pretoria has found that the Dutch Reformed Church's policy against solemnising same-sex marriages, diminished the integrity of gay congregants.

Judges Sulette Potterill, Joseph Raulinga and Daisy Molefe handed down the judgment in which it found that the church's 2016 policy was unlawful and invalid, and set it aside.

The court found that it was unfair to exclude members of the church, on the basis of their sexual orientation, from the full and equal enjoyment of all rights and freedoms that the church offered.

Background

In 2015, the church decided to allow individual church councils to recognise same-sex marriages and also scrapped a rule that gay ministers of the church had to be celibate.

A year later in 2016, the church adopted a new policy scrapping the 2015 one.

Reverend Laurie Gaum, his father Dr Frits Gaum and eight other members of the Dutch Reformed Church, launched the High Court application to have the 2016 decision set aside and declared unconstitutional.

From the onset, the full Bench conceded that issues of recognition and acceptance of same-sex unions within religious associations raised controversial and sensitive points.

"On the one hand, it's the conflict between the right of freedom of religion and the right not to be discriminated against, based on sexual orientation," the judgment read.

The judges also spoke about entanglement, which referred to the court becoming involved in religious matters.

However, the judges found that there was a case to answer to and that the court had the jurisdiction to deliberate on the substantive issues raised.

Arguments

The church maintained that its decision not to recognise same-sex marriages was not tantamount to unfair discrimination and not in breach of the Constitution.

They argued that the 2016 decision did not force anyone into anything and did not prohibit same-sex couples from entering into civil unions.

Gay couples could still attend the church, but could just not get married in the Dutch Reformed Church.

The church conceded that it might be a form of discrimination, but said that section 9 of the Bill of Rights referred to unfair discrimination. It submitted that its decision was not tantamount to unfair discrimination.

However, Gaum insisted that the church conceded it was discriminatory and that it failed to put up facts to discharge the onus that there was a breach of the Constitution when it made the 2016 decision.

He added that the church did not have the right to invoke hurt or discriminate against anyone by not accepting same-sex unions and by "imposing celibacy on one roof of people".

Policy unfair and discriminatory

On Friday, the court found that differentiating between heterosexual members and members of the LGBTIQA+ community, constituted discrimination that was presumed to be unfair in terms of section 9 of the Constitution.

"In this matter, the question to be answered is, did the LGBTIQA+ community suffer inequality in the pre-constitutional South Africa and still today? The answer is an overwhelming yes," the judgment read.

"The differentiation caused by the 2016 decision does inherently diminish the dignity of Gaum because same-sex relationships are tainted as being unworthy of mainstream church ceremonies and persons in same-sex relationships cannot be a minister of the church."

The court declared the church's decision invalid and unlawful and set it aside.

The court also found that the appeal process within the church, which upheld the 2016 decision, was also invalid and unlawful and also set it aside.

The church was ordered to pay the costs of the application.