By Michael Swain, FOR SA Executive Director
Recently, theowners of the Beloftebos wedding venue were back in the cross hairs because theydeclined the opportunity to host (and for their family to be involved in) thecelebration of the same-sex wedding of Megan Watling and Sasha-Lee Heekes.Social media, as well as news agencies from around the world, jumped on thestory. Given the sense of outrage andthe level of vilification and condemnation of their decision, it is importantto pull back the lens and quieten the fire and the fury so that the matter canbe examined in the cool light of the South African Constitution and internationalhuman rights law.
“All people, but not all events”:
Significantly,the owners of Beloftebos did not discriminate against the couple on the groundof their sexual orientation, nor because of their decision to marry. They fully respect that every person has theright to make their own choices regarding who and how they love, which isrecognised by the Constitution and facilitated by the Civil Union Act, 2006.
However, theyhold the belief (which has been the position of Christianity, and indeed otherfaiths, around the world for thousands of years) that marriage is between oneman and one woman. For Christians, marriageis also a deeply holy and symbolic picture of the relationship between Christ(the Bridegroom) and His Church (the Bride of Christ). As such, it is neitherincidental nor irrelevant but represents a central tenet of their faith.
By contrast, hadthe same couple asked Beloftebos to book their venue for e.g. a birthday party– which would not require Beloftebos to host or celebrate an event that wouldin any way violate their Scriptural beliefs - they would have certainly beenaccommodated. Equally, had anyone(regardless of their sexual orientation) requested a booking for e.g. aHalloween party – an event which would require them to violate their own Scripturalbeliefs - they would have been refused.
To be veryclear: the owners of Beloftebos happily serve all clients, but – because oftheir religious beliefs and convictions – they are unable and unwilling to bepersonally involved in celebrating every type of event.
Unfair discrimination?
It is worthwhilepointing out the obvious – the owners of Beloftebos clearly exerciseddiscrimination (or differentiation) in their decision. However, discrimination in and of itself isnot unlawful or illegal. Section 9 ofthe Constitution – often referred to as the “equality clause” – says that noone may be unfairly discriminated against on a number of prohibited grounds,including race, age, sex, gender and sexual orientation. Significantly, the list also includes “religion,conscience and belief”. Although“age” is evidently a protected category, the State discriminates against peopleunder the age of 18 by not allowing them to drive a car unsupervised, to buyalchohol or to vote in a political election. This is not deemed to be unfair because there are sound reasons behindthis restriction. It is therefore thetest of unfairness which lies at the heart of whether (or not) discriminationis lawful.
Importantly, itis settled law that there is no hierarchy of rights in the Constitution. They each have equal status and are worthy ofequal protection. Whenever courts haveto consider the challenge where two rights are in apparent conflict, their taskis to find a solution where, although one right may need to be limited, itshould be in such a way that the maximum benefit of both rights can stillcontinue to be enjoyed. It is neverintended to be a “winner takes all” outcome where one right simply trumpsanother.
Section 10 isalso relevant, which declares that “Everyone has inherent dignity and theright to have their dignity respected and protected”. The theme of human dignity is woven throughoutthe Constitution and it is evidently relevant here: In this case, the couple clearly believe thattheir human dignity has been infringed because Beloftebos made the decision notto celebrate their same-sex wedding with them. However, human dignity is an equally vital component of a person’sreligious belief, and for this reason also, the Constitutional Court has on anumber of occasions already confirmed that everyone is entitled to express andto live out their faith publicly.
By illustration, in the news this week has been the decision by the South African National Defence Force (SANDF) to withdraw charges against Muslim major, Fatima Isaacs, who refused to remove her headscarf. Her choice (and even insistence) that she be allowed to wear this item is because her faith is an integral part of her human dignity. It is therefore worthy of respect and protection and should be reasonably accommodated. By contrast, the sincerely held belief of the Beloftebos owners has been lambasted and ridiculed as outdated, bigoted and homophobic although all they are asking is that their rights and their human dignity be afforded equal respect and consideration.
An international trend:
There have beenvery similar situations and cases in both the USA and the UK, where weddingindustry service providers in particular have been targeted by LGBT activists. Inthe USA, Jack Phillips was taken to court by the Colorado Human RightsCommission (HRC) because he said that he was unable to use his creative talentsto decorate a wedding cake to celebrate a same-sex wedding. His position was that he was willing to sellthe couple any cake they wanted, but he did not feel able – on the grounds ofhis sincerely held belief that marriageis between a man and a woman – to decorate the cake himself, nor did he believethat he should be forced to do so. Thecase went all the way to the US Supreme Court where it was decided in hisfavour, on the procedural ground that the Colorado HRC had evidentlydemonstrated an unfair bias and approach to Jack simply because of hisfaith. Interestingly, the same Colorado HRCimmediately filed another case against him, which was also subsequentlydropped. A third case is nowpending.
In the USA also,Barronelle Stutzman, a 75-year old American florist, was taken to court after shedeclined to produce a customised flower arrangement for the wedding of asame-sex couple who had been long-standing customers, and for whom she had mademany flower arrangements for various other occasions. She offered them any of the pre-made flowerarrangements, but explained that she was unable - because of her Biblical beliefsregarding marriage - to use her personalcreativity to help celebrate something which she did not believe in. Her case is also now awaiting a decision fromthe US Supreme Court.
A similar casein the UK involved Asher’s Bakery, owned by a Christian family in NorthernIreland. An LGBT activist, during the debate on whether or not Ireland wouldvote in favour of legalising same-sex marriages, called to order a cake andthen said he wanted it to be decorated with a Simpson’s cartoon stating “SupportGay Marriage”. Ashers said that whilethey would happily sell him any cake, they should not be compelled to decorateit with a message that they were unable to support for reasons of theirfaith. The UK Supreme Court ultimatelyupheld the rights of the Christian bakery, on the basis that the bakery did notdiscriminate against the customer because of his sexual orientation. In fact, ifanyone had placed the same order, it would equally have been refused. Rather,the bakery’s objection was to the message it was being asked to promote on thecake, and which was against its religious beliefs. (This case is now on appealto the European Court of Human Rights).
Dangerous implications for everyone:
In all thesecases, there is a fundamental human rights issue at stake which goes far beyondwhat anyone may think of the faith or actions of those who have refused tocompromise their beliefs in this specific area. No matter how much one may sympathise with the hurt and offense felt by theLGBT complainants, if they succeed in law in forcing a business or anindividual to do, or say, something to which they are fundamentally opposedbecause of a conflict of conscience and belief, this will set a most dangerousprecedent. Significantly, the principleestablished will not simply apply to faith issues, but will have universalapplication. It will be equallyapplicable to the socio-political sphere and will mean that anyone may be ableto be forced to do or say anything which those who have the power want themto. There is no greater abuse of humanrights than this, whose end was horrifically demonstrated during the lastcentury in Hitler’s Germany, Stalin’s Soviet Union and Mao’s China.
Conclusion:
In conclusion,it is regrettable that Megan Watling and Sasha-Lee Heekes have elected toresort to legal action and to put themselves forward as champions for therights of the LGBT community. Instead ofrespecting the equality rights of the Beloftebos owners to adhere to theirsincerely held religious convictions and beliefs, they have decided to take a highlyadversarial position with a view to either forcing the owners to act contraryto their convictions or to face severe and punitive sanctions.
Unfortunately,in an age of identity politics and political correctness, it is evidentlyinsufficient that the couple’s sexual orientation rights are fully protectedand supported in law and are clearly respected by the owners of Beloftebos – whoare not denying them the right to get married, but are only asking that theirconstitutional right to religious freedom (and the ability to not be forced toparticipate in and host an event that is irreconcilable with their deeply heldreligious convictions) be equally respected. Instead, they are now facing thestark choice of being forced to put their faith and beliefs aside and tosupport and celebrate what the couple believe, or else!
International and human rights law have long recognised that religious freedom rights lie at the heart of any true democracy. No one should ever be placed in a position whereby if they obey secular laws, they risk facing eternal consequences but if they disobey these laws, they will face penalties imposed by the State. It is hoped that, in a nation where we have a Constitution which states that we “believe that South Africa belongs to all who live in it, united in our diversity”, the courts will ensure that the vital freedoms of both parties are balanced and preserved.
[author] [author_info]Michael was raised in England, graduating from the University of Bristol with an honours degree in Law before immigrating to South Africa in 1983. He has been a successful businessman as well as having spent over 30 years in ministry in South Africa, Europe and the USA. He serves as the Executive Director of Freedom of Religion South Africa (FOR SA).[/author_info] [/author]
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