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Court overturns church's anti-gay policy

Publish date: 11 March 2019
Issue Number: 814
Diary: IBA Legalbrief Africa
Category: South Africa

The Gauteng High Court (Pretoria) has overturned a decision by the Dutch Reformed Church forcing gay clergy to be celibate and barring its clergy from officiating same-sex marriages, says a Mail & Guardian report. It found it was unfair to exclude members of the church from the full and equal enjoyment of all rights and freedoms that the church offers. The decision was challenged by 11 of the church’s members. One of its members, Laurie Gaum, reportedly told the M&G: ‘We believe this case provides a unique opportunity to move the stalemate regarding (gay) rights and religious denominations forward in SA and on the continent.’ At the church’s 2004 general synod, it took the decision that all in the church, regardless of sexual orientation, were full members. Its 2007 general synod meeting, however, saw the decision taken that gay ministers would have to remain celibate. In 2015, in a move that surprised many, the church announced its decision to approve same-sex unions and also allow for the ordaining of ministers who identified as homosexual. The decision was taken after a 64% vote in favour of it was taken at the synod. That decision, however, was short-lived as the it was overturned during a special synod meeting in 2016. A statement by the church following the decision, read: ‘Marriage was instituted by God as a sacred and lifelong union between one man and one woman and that any sexual intercourse outside such a solid formal marital relationship does not meet Christian guidelines.’

Full Mail & Guardian report

Three judges – headed by Judge Joseph Raulinga – overturned the church’s decision, notes a Saturday Star report. Raulinga said the church practically allowed the LGBTIQA community to be members of the church, but excluded them from leadership positions and from a marriage ceremony. The judge referred to the Bill of Rights, which endorses same-sex unions and marriages. He said the church did not make a convincing argument that its discrimination was fair. He said it was unfair to exclude certain members of the church of their full and equal enjoyment of all rights and freedom the church offers. ‘The impact is clear, members of a congregation cannot marry in their congregation. It is said that Gaum could go to another church to get married, but this amounts to unfair discrimination.’ Raulinga said in the church, not everyone held the view that same-sex unions were 'unbiblical'. He said arguments can be made, but ultimately the Constitution spoke the last word regarding the legality of discrimination.

Full Saturday Star report