Legal Case Against Mission Organisation Favourably Resolved

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”.

This outcome 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 sense envisaged under s 16(2)(c)” (of the Constitution, which prohibits “hate speech” as defined hereafter) and “the fact that a particular expression maybe hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection …. The bounds of constitutional protection are only overstepped when the speech involves propaganda for war; incitement to imminent violence; or the advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes an incitement to cause harm”.

In particular, with regard to the issue of homosexuality, the Constitutional Court has already stated that “those persons who for reasons of religious belief disagree with or condemn homosexual conduct, are free to hold and articulate such beliefs” (Judge Albie Sachs in National Coalition for 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 is reserved for marriage and that any sexual activity (whether heterosexual or homosexual, or in the form of pornography) outside of this permanent and holy union of one man and one woman, is outside of God’s design and typically leads to 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 even labelled it as “hate speech”. Subsequently, one of the learner’s family members, who himself was not present at the talk but heard about it subsequently, initiated a case against the organisation and the speaker with the 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:

• Inform themselves of the particular audience they will be addressing – including specifically whether it is a Christian, or mixed, audience.In this regard, it is important to remember that the Constitution recognises that we live in a diverse society where people do hold to a variety of convictions, religions, beliefs (also with regard to human sexuality), and that we all have a duty to respect our difference (of opinion, etc.) and extend dignity to each other in spite of difference.
• When ministering into a State or State-aided institution (including a public school), particular rules may apply. In this regard, FOR SA refers to the guideline document that we have prepared for religious practitioners and organisations working into public schools (see forsa.org.za/resources/document-library, folder “Education”, file “FOR SA Guideline on OGOD judgment – Aug 2017”).
• Stick, as far as possible, to the topic they have been asked to speak to.When given limited time, preachers should be particularly careful not to make unqualified statements that there may not be the time to unpack. As far as possible, ground statements (particularly if it may be seen as controversial or politically incorrect) with reference to Scripture.
• Care should be taken not only in “what” is said, but “how” it is said.  For example, when addressing the issue of homosexuality from a Biblical perspective, it is extremely important to convey truth and grace – speaking not only about sin (and the fact that, in God’s eyes, we are all sinners), but about the forgiveness for sin that is available inJesus Christ. As someone once said, it is loving to speak truth, but only if we speak truth lovingly! 
• Make their own recording of their sermon / talk – particularly if they intend addressing a controversial topic. In this way, preachers can ensure that they have an original “back up”copy to refer to, when incorrectly or selectively quoted in the media or in court papers.