By Freedom of Religion South Africa (FOR SA)
Last week, FOR SA’s Legal Counsel assisted in favourably resolving a legal case that threatened to seriously erode the religious rights of a well-respected international mission organisation based in South Africa. Amongst other things, the Complainant (a member of the LGBT community) had asked the Equality Court to interdict the organisation from “continuing to conduct organised sermons and/or gatherings and/or missions and/or presentations to pupils under the age of 18, in his personal or representative capacity” if the organisation was not prepared to change its views regarding same-sex relationships in line with the Constitution.
In an agreement concluded with the Complainant, the organisation apologised to anyone who may have been affected by the talk and expressly stated that “there was no intention to hurt, harm or incite any form of violence against persons practising a specific sexual orientation”. Significantly however, the agreement respects and protects the organisation’s right to religious freedom (including religious expression) by expressly acknowledging that “the Constitution protects the fundamental right to hold, profess and practise religious convictions and beliefs (including views on Biblical marriage and human sexuality) as one chooses”.
Thisoutcome is in line with recent cases such as Masuku v SAHRC (2018), where the Supreme Court of Appeal (SCA)emphasised that “a hostile statement is not necessarily hateful in the senseenvisaged under s 16(2)(c)” (of the Constitution, which prohibits “hatespeech” as defined hereafter) and “the fact that a particular expression maybe hurtful of people’s feelings, or wounding, distasteful, politicallyinflammatory or downright offensive, does not exclude it from protection …. Thebounds of constitutional protection are only overstepped when the speechinvolves propaganda for war; incitement to imminent violence; or the advocacyof hatred that is based on race, ethnicity, gender or religion and thatconstitutes an incitement to cause harm”.
Inparticular, with regard to the issue of homosexuality, the Constitutional Courthas already stated that “those persons who for reasonsof religious belief disagree with or condemn homosexual conduct, are free tohold and articulate such beliefs” (Judge Albie Sachs in National Coalitionfor Gay and Lesbian Equality v Minister of Justice (1998)).
From a legal point of view, it is clear therefore that the constitutional right to freedom of expression includes statements that others may not like, agree with or even find offensive. The fact that someone finds such speech “offensive”or even “hurtful” does not make it “hate speech”.
The facts:
The organisation was invited to address a Christian independent school on “the trappings of pornography and social media”. Given the Christian context into which the speaker was invited, he chose to frame the talk within the Biblical understanding of marriage as a permanent and exclusive union between one man and one woman (Genesis 2:24-25).
He sought to explain that from a Biblical perspective, sex isreserved for marriage and that any sexual activity (whether heterosexual orhomosexual, or in the form of pornography) outside of this permanent and holyunion of one man and one woman, is outside of God’s design and typically leadsto broken families where it is often the children of divorced parents who endup suffering most.
Even though many learners responded to the invitation to receiveJesus into their hearts, some of the learners were upset by the talk and evenlabelled it as “hate speech”. Subsequently, one of the learner’s familymembers, who himself was not present at the talk but heard about itsubsequently, initiated a case against the organisation and the speaker withthe Equality Court, claiming that the sermon was “strongly homophobic”.
A few reminders:
Even though the case law makes it clear that the constitutional right to freedom of speech protects statements (or Scriptures) that other people may not like, agree with or even find offensive, FOR SA encourages preachers - particularly when speaking or ministering into a “non-church” context – to:
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Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by:
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NOTE & DISCLAIMER
FOR SA currently has a support base of religious leaders and individuals representing +/- 6 million people across a broad spectrum of churches, organisations, denominations and faith groups in South Africa.
FOR SA is not registered as a law firm and therefore cannot (and does not) give legal advice for which we can attract any legal liability; neither can we charge legal fees for our services.
