Why the Story of an American Baker Matters to Religious Freedom in South Africa

In an important decision this month, the Supreme Court of the United States (SCOTUS) affirmed the right of religious people to have their beliefs treated with dignity and respect by the government.

The question the Court had to answer in this case was how the duty of the State (and its government institutions—in our South African context, think the Human Rights Commission and Commission for Gender Equality) to protect homosexual couples from unfair discrimination should be balanced with its duty to allow its citizens the free exercise of their religious beliefs.

[A copy of the judgment is available here – https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf]

Given the implications of this case, it is worthwhile examining exactly what it was about and why the Court’s decision matters to South Africans.

Facts of the Case

In 2012, a gay couple visited Masterpiece Cakeshop in Colorado, owned by Jack Phillips, to order a cake for their same-sex wedding.

Jack explained to the couple that he does not create cakes for same-sex weddings because, for him, that would mean giving his personal endorsement to—and participating in celebrating—something contrary to his deeply held beliefs.

He did, however, offer to sell them any other type of cake, such as a birthday cake. For Jack, it was the “kind of cake, not the kind of customer, that mattered” (as Justice Gorsuch put it).

The couple filed a discrimination complaint against Jack in terms of the State’s Anti-Discrimination Act (Colorado’s equivalent to South Africa’s Equality Act) with the Colorado Civil Rights Division, which found Jack guilty. This decision was upheld up to the Colorado Court of Appeals.

SCOTUS’s Decision

SCOTUS, the highest court in the United States, agreed to hear Jack’s appeal.

The Court faced the difficult task of protecting:

• the right to equality (equal access to goods and services), and
• the right to religious freedom (free exercise of religion).

The seven-judge majority reversed the decision of the Colorado Court of Appeals.

Importantly, this was not because the Court fully resolved the balancing of these competing rights, but because it found that Jack’s case had not been heard in an unbiased forum.

In the United States, the First Amendment requires that laws be applied in a way that is neutral toward religion.[1]

The Court found clear evidence of hostility and bias against Jack’s sincere religious beliefs—from the Colorado Civil Rights Commission through to the Colorado Court of Appeals.

As a result, SCOTUS concluded that Jack’s right to a neutral and respectful hearing had been violated.

The Court therefore limited its analysis to the conduct of the State agencies and overturned their decision.

Key principle from the judgment

Importantly, SCOTUS held that the government has no role in deciding (or even suggesting) whether a person’s religious convictions are legitimate or illegitimate.

It stated:

“the Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.”

Why the SCOTUS Decision Matters to Us

Increasingly, Christian business owners in South Africa are being investigated by government commissions—including the South African Human Rights Commission (SAHRC) and the Commission for Gender Equality (CGE)—and the courts for refusing, on grounds of their religious beliefs, to host or participate in same-sex weddings.

In terms of section 39(1)(c) of the South African Constitution, courts may consider foreign law when interpreting the Bill of Rights.

As such, South African courts and commissions (such as the SAHRC and CGE) should take note of this case—particularly the strong warning against bias or hostility toward people of faith.

Rather, the State should act even-handedly and extend equal dignity and respect to the viewpoints of both parties.

South African constitutional context

• Section 9(3): The State may not unfairly discriminate on grounds including religion, conscience, and belief.
• Section 15: Protects freedom of religion, belief, and opinion.
• Section 7(2): Requires the State to respect, protect, promote, and fulfil these rights.

Footnote

[1] The First Amendment reads as follows:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

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