Discrimination: SA’s courts give religious beliefs and practices a free pass

Why do religious beliefs and practices – especially the religious beliefs and practices of powerful and dominant religious groups – so often get a free pass from society and the courts? Should certain religious beliefs and practices not be evaluated in the same manner that all other beliefs and practices are evaluated to determine whether they are true and whether they infringe on the rights of others?

Pope Francis, the “infallible” head of the Catholic Church, has been getting some great press recently. Because he has made statements that seem to reflect a sincere and pressing concern for the plight of poor and vulnerable people, because he has embraced the issue of climate change, and because he seems genuinely humble and down to earth, he has received much praise in the mainstream media.

Yet, he heads a church that institutionalises discrimination against women, gay men, lesbians and transgender people. It is unthinkable at present that a woman, an (openly) gay man or lesbian or a transgender person could become pope or could serve in any other role in the top leadership of the Catholic Church.

If the Catholic Church was not a religious organisation but another influential cultural institution (think of Afriforum or the Federasie van Afrikaanse Kultuurverenigning), there would have been widespread condemnation of its catastrophic denial of the basic human dignity of fellow citizens. Its leaders would have been vilified, instead of lauded as progressive visionaries.

Moreover, there would have been little doubt that (in South Africa at least) the Constitutional Court would have declared these practices in breach of the equality clause and would have ordered the institution to stop discriminating against people on the basis of their sex, gender and sexual orientation.

(The Catholic Church and Pope Francis are not alone in this and I do not wish to pick on the institution and its leader – I am merely using it as a handy example. In fact, comparing to his predecessor Pope Francis has indeed expressed views on some matters that will warm the heart of any person concerned about social and economic justice.)

Of course, not all religious beliefs and practices receive such a free pass. If you happen to be a member of a small and relatively powerless religion, the law is likely to take a much harsher view of your beliefs and practices.

For example, Rastafarians are automatically turned into criminals in South Africa for practising their religion (even though this harms no one else) as the law prohibits them from using and possessing cannabis as prescribed by their religion. But because Rastafarianism is a small, unorganised religion and because it is not politically powerful, the criminalisation of these religious practices has remained largely uncontroversial.

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by Pierre De Vos

Photo Credit: Flickr/Lebo Bucibo