Religion, same-sex marriage and the courts in the Rainbow Nation of South Africa

The Court of Appeal in South Africa recently handed down an interesting judgment on clergy employment. Mark Hill QC, Professor at the Centre for Law and Religion, Cardiff University and Extraordinary Professor at the University of Pretoria, has kindly provided this guest post.

The question of clergy employment was recently considered by the Supreme Court of the United Kingdom in Preston v President of the Methodist Conference [2013] UKSC 29 and by its United States counterpart in Hosanna-Tabor Evangelical Lutheran Church v Equal Employment Opportunity Commission 132 S Ct 694 (2012). The South African Court of Appeal has recently had its say: on 29 September 2014 it handed down its judgment in Ecclesia de Lange v Presiding Bishop of the Methodist Church of Southern Africa [2014] ZASCA 151.

The facts

The Appellant, the Revd Ecclesia de Lange, sought to set aside an arbitration agreement and to quash a decision by the Methodist Church of Southern Africa (MCSA) to end her service as a minister. She had been ordained and received into Full Connexion in August 2006. On Sunday 6 December 2009 she read a letter to her congregation indicating that she intended to marry her long-term lesbian partner the following week. She was informed by her Superintendent Minister on 8 December 2009 that a charge had been laid. Two days she was suspended from ministry pending the outcome of a disciplinary hearing. The wedding proceeded.

The charge was of acting in breach of the Laws and Discipline of the MCSA, it being the Church’s policy, practice and usage to recognise only heterosexual marriage. A hearing before the District Disciplinary Committee found such a breach in the Appellant announcing her intention to enter into a same-sex civil union, and especially by doing so without consultation with her Superintendent and the Bishop. The Committee recommended that she continue under suspension until such time as the MCSA makes a binding decision on ministers in same-sex unions. The appellant filed a notice of appeal against the decision to the Connexional Disciplinary Committee (CDC), contending, inter alia, that the verdict was unfair in that the MCSA was yet to formulate a policy regarding same-sex civil unions and the sentence excessive in that it was entirely open-ended. In February 2010 the CDC affirmed the earlier verdict and ordered that the Appellant ‘be discontinued from the ministry’ of the MCSA. Thus, the Appellant, while remaining an ordained Minister, was precluded from exercising any ministerial functions, holding any station or receiving any emoluments.

The Laws and Discipline prescribed that any challenge to the determination of the CDC was to be by way of arbitration. A reference was made and an arbitrator appointed; but practical difficulties arose and the Appellant applied to the High Court, which held that the application was premature and that she should first submit to arbitration. Leave was given to appeal.

The Court of Appeal refused to allow Counsel for the Appellant to advance a case that the MCSA’s decision to discontinue her ministry was ‘unconstitutional and unfair discrimination based upon [her] sexual orientation’ because in her affidavit the Appellant had unequivocally disavowed such a claim. It was therefore unnecessary to engage with the collision between the right to freedom of religion, on the one hand, and the right to equality on the other.

Evidence from the MCSA indicated that the experience of its members had ‘given it pause to consider whether its attitudes and practices towards homosexual people have been consistent with the message of Christ, and whether its use of Scripture in this matter has been faithful to the biblical witness as a whole’. But marriage, the MCSA maintained, was an institution of central importance to it and, historically, the Church has only recognised marriage as between one man and one woman. That is still its policy and practice, although the recognition of same-sex unions has become an issue of importance within the Church. It has therefore been facilitating debate and engagement around this deeply divisive issue, with factions holding starkly divergent doctrinal views. It has thus sought to avoid conflict and schism within the Church.

The issues

The substantive question for the Court of Appeal was whether the Appellant had shown ‘good cause’ for terminating the arbitration, the onus being not easily discharged. The Court did not have to consider whether the relationship between the MCSA and its ministers is contractual as would be the case with a member of a voluntary association, because it was accepted that a signed agreement by the parties brought the matter within the ambit of the Arbitration Act. It followed that a valid arbitration agreement was concluded and the Appellant should be bound by its terms.

The Court rejected the Appellant’s submissions regarding delay, which was attributable, at least in part, to the Appellant and her attorney. Her complaint that the arbitration agreement was signed on her behalf by the convener was also rejected. It noted that the MCSA had always accepted that the arbitrator’s decision might be amenable to review on grounds of legality. It was neither unconstitutional nor unlawful for a body like the Church to require its members to resolve disputes primarily through internal processes, including arbitration. The right to legal representation was left to the discretion of the arbitrator, who refused it. The Court observed that parties have consistently been denied any entitlement to legal representation as of right in fora other than courts of law.

The Appellant also complained that the arbitrator, as a member of the Church, acts at the behest of the Church and is thus biased or is reasonably perceived to be biased. The Church’s appointment of members to its arbitration panel is entirely understandable. It is to ensure that only those persons who are familiar with its rules, procedures and practices are appointed to the rather sensitive task of adjudicating disciplinary disputes. There is nothing objectionable in private associations seeking to exclude outsiders from disciplinary processes and to ensure that those proceedings are kept ‘within the family’.

The dispute, according to the Church, was quintessentially the kind of dispute that a secular court should avoid becoming entangled in, because the issues go to sensitive matters of Church doctrine and governance. The Court asserted that protecting the autonomy of religious associations is considered a central aspect of protecting religious rights. As the South African Constitutional Court held in Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 94:

‘In the open and democratic society contemplated by the Constitution there must be mutually respectful co-existence between the secular and the sacred. The function of the Court is to recognise the sphere which each inhabits, not to force the one into the sphere of the other.’

The determination of who is morally and religiously fit to conduct pastoral duties, or who should be excluded for non-conformity with the dictates of the religion, falls within the core of religious functions. In a previous case, a court had refused to adjudicate upon a doctrinal dispute between two schisms of a sect unless some proprietary or other legally recognised right was involved. The ‘doctrine of doctrinal entanglement’ entails a reluctance of the courts to become involved in doctrinal disputes of a religious character.

This approach, the Court indicated, is consistent with that taken in comparable foreign jurisdictions. In the USA, the Establishment Clause prevents courts from determining doctrinal disputes. Decisions of religious tribunals are subject only to such appeals as the religious body itself allows. Similarly, in the United Kingdom the decisions of ecclesiastical courts are generally not amenable to correction or challenge in the secular courts. Shergill v Khaira [2014] UKSC 33 para 45 held that

‘courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites […] The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust’.

Australian law also prohibits courts from determining questions of religious doctrine, practice or procedure and Canadian Courts are generally reluctant to interfere in the internal management of voluntary associations, because, as it has been put, they have no interest in the day-to-day activities of those associations.

The Court’s conclusions

The Court rejected the Appellant’s appeal. As the main dispute concerned the internal rules adopted by the Church, such a dispute, as far as is possible, should be left to the Church to be determined domestically and without interference from a court. A court should only become involved in a dispute of this kind where it is strictly necessary for it to do so. Even then, it should refrain from determining doctrinal issues in order to avoid entanglement. A proper respect for freedom of religion precludes courts from pronouncing on matters of religious doctrine, which fall within the exclusive realm of the Church

Individuals who voluntarily commit themselves to a religious association’s rules and decision-making bodies should be prepared to accept the outcome of fair hearings conducted by those bodies. Here, on discovering that the CDC had found against her, the Appellant invoked the arbitration provision. She never challenged the relevant provisions of Law and Discipline. Having initiated the arbitration process and having participated in it for almost a year, it was not open to the Appellant to avoid the arbitration by having the matter determined by a court. The appeal was therefore dismissed.

A separate minority judgment, whilst concurring in the result, addressed some technical issues under the Arbitration Act. It also drew attention to earlier United Kingdom decisions that held that the nature of a minister’s relationship with a church flowed from ordination and was not intended by the parties to be of a contractual nature. It referred to the recent decision in Preston v President of the Methodist Conference, where Lord Sumption reviewed the structure of the Methodist Church in the United Kingdom, which shares many of the features of its sister church in South Africa. The rights and duties of ministers arise, it concluded, entirely from their status in the constitution of the MCSA and not from any contract. The Appellant’s relationship with the MCSA was not contractual but an expression of her vocation to ministry exercised under the discipline of the Church. Since the relationship was not governed by contract, it was not open to the parties to agree to refer to the matter to arbitration and thus the way the case had proceeded was misconceived.


Only time will tell whether this judgment of the South African Court of Appeal will inform the resolution of the litigation which is in train in the United Kingdom: the claim brought in the Employment Tribunal by Canon Jeremy Pemberton alleging discrimination in the refusal to grant him a licence so he might take up a post as a hospital chaplain or the Court of Appeal’s pending judgment in Sharpe v Diocese of Worcester [from Sharpe v Worcester Diocesan Board of Finance Ltd & Anor [2013] UKEAT 0243 12 2811] concerning the employment status of a Church of England incumbent.


The second edition of Religion and Law in the United Kingdom by Mark Hill QC, Russell Sandberg and Norman Doe was published by Kluwer in June 2014.

On Wednesday 29 October 2014 Professor Hill will deliver the final lecture of the Ecclesiastical Law Society’s 2014 Series, entitled: Judicial Deference and the Non-Justiciability of Religious Disputes.



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  1. Pingback: Religion and law round-up – 5th October | Law & Religion UK

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