The Implications of the “Gaum vs Dutch Reformed Church” Judgment

A Guideline for Churches and Religious Organisations

By Adv Nadene Badenhorst, FOR SA Legal Counsel

On 7 March 2019, the PretoriaHigh Court delivered judgment in the case of Gaum & others v Janse van Rensburg & others. In terms ofthe Court Order, the decision on same-sex relationships adopted during theextraordinary meeting of the General Synod of the Dutch Reformed Church during7-10 November 2016 was declared unlawful and invalid, and the decision wasreviewed and set aside.

Since thejudgment, Freedom of Religion South Africa (FOR SA) has been approached byvarious churches and religious organisations wanting to understand theimplications of the judgment against the Dutch Reformed Church,for them, if any.  For example: does itmean that they must allow practising homosexuals to be ordained as pastors inthe church? Does it mean that they have to marry homosexuals, even if it goesagainst their religious doctrine and belief? The short answer to this is, no, not necessarily.

WHAT WERE THE FACTS, AND REASONS FOR THEJUDGMENT?

In 2015,the General Synod of the Dutch Reformed Church took a decision removing the celibacyrequirement for homosexual pastors in the Dutch Reformed Church, and permitting(but not forcing) pastors in the Dutch Reformed Church to solemnise same-sexunions.

Thisdecision was reversed in 2016, and it is this reversal that the Court had toconsider – both from a procedural point of view (i.e. did the Synod follow thecorrect internal procedures in reversing the 2015 decision), and from asubstantive/constitutional point of view (i.e. did the 2016 decision violateany constitutional rights of homosexual people?).

The Courtfound that on both points – procedurally, and substantively – the Synod got itwrong, and thus set the 2016 decision aside. (Technically, this means that the2015 decision stands until set aside or replaced in terms of proper internalprocedure).

TO WHOM DOES THE JUDGMENT APPLY?

As thecase was brought against and involved the Dutch Reformed Church only, thejudgment (and Order) apply and are binding only on the Dutch Reformed Church. Itdoes not have automatic application to, or binding force, on churches andreligious organisations outside of the Dutch Reformed Church.

In other words, the judgment does not force any other church or religious organisation in South Africa to ordain practising homosexuals as pastors, and/or to solemnise same-sex unions. In terms of the Civil Union Act, pastors who want to solemnise same-sex unions must have a specific licence to do so – this provision stands and has not in any way been changed by the judgment.

HOWEVER WHAT CAN WE LEARN FROM THE JUDGMENT?

While thejudgment (and Order) do not automatically bind churches and religiousorganisations outside of the Dutch Reformed Church, it is possible that othercourts may refer to or even rely on the judgment in future cases broughtagainst other churches or religious organisations.

For thisreason, it is important – specifically with a view to protecting (the autonomy)of the church and religious organisations against unnecessary interference bythe Courts, as far as possible - to take note of certain aspects of thejudgment and the implications thereof for churches and religious organisations.

1. Churches and religious organisations must diligently follow internal rules and procedures when making decisions. Failure to do so, may result in a procedural challenge as a result of which the entire decision (if found to be procedurally defective) may be set aside by a court of law.
2. Churches and religious organisations would be well advised to stipulate the central tenets of their religious doctrine or faith (including on the issue of marriage) in a Statement of Faith, which all members and leaders must subscribe to and adhere.[1] In this regard and in particular:
3. Where it is necessary - because of religious convictions or beliefs – to treat different persons differently (with regard to, for example, membership or leadership criteria, employment policies, etc), churches and religious organisations would be well advised to substantiate this (ideally with reference to Scripture and the inherent requirements of the job) in their internal policies and codes.,
4. It is also a good idea to have members and leaders sign a Code of Conduct in terms of which they agree to disciplinary procedures and measures (including potential ex-communication) in case of a breach of the Church’s Statement of Faith and/or Code of Conduct.
5. It is important to be consistent in the application of one’s religious convictions and beliefs.[2] Where a church - for example - allows practising homosexuals to become members or even leaders in the church, to participate in the sacraments of baptism and communion etc, but does not allow them to get married in the church, that may be seen as problematic depending on what has been expressly agreed to.

Finally, should a case be threatened orbrought against your church or religious organisation in any forum, requiring itto defend your Biblical beliefs (on the issue of marriage or otherwise), or ifyou learn of such situations, please immediately inform FOR SA!

*Note: Thisdocument is intended to serve as a general guideline only and cannot replacespecific legal or pastoral advice addressing individual circumstances. FOR SAdoes not accept any responsibility for reliance placed upon it, and it may bewise to obtain legal advice particular the specific church or religiousorganisation involved.

For more information, contact:

FREEDOM OF RELIGION SOUTH AFRICA (FOR SA)
Tel:  021 – 556 5502
E-mail:  legal@forsa.org.za
Facebook:  Freedom of Religion SA

[1] In the case of the Dutch Reformed Church, the Court found that the Churchwas “split on its interpretation of theBible pertainingto same-sex marriages and leadership in the Church based on sexual orientation”. It appears that the lack of consensus orcertainty in the Dutch Reformed Church, opened the door to the Court’s scrutiny of theChurch’s position in this regard.

[2]In the case of the Dutch Reformed Church, the Court took issue with the fact that the Dutch Reformed Church allowed practising homosexuals to study to become a minister in the DutchReformed Church, but then disallowed them from actually being ordained as a minister in the Church. This seemed tothe Court to be an inherent contradiction.

[author] [author_image timthumb='on']https://forsa.org.za/wp-content/uploads/2014/04/nadene-badenhorst.jpg[/author_image] [author_info]Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.[/author_info] [/author]

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