The right of religious associations to discriminate
Authors Patrick Lenta
Affiliations: Associate Professor, School of Philosophy and Ethics, University of Kwazulu-Natal
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 231 – 257
The issue of whether religious associations should be permitted to engage in employment discrimination on prohibited grounds such as gender, sexual orientation or race gives rise to a collision between the rights to religious freedom and freedom of association, on the one hand, and the right to equality, on the other. In a recent article in which I criticised Basson J for balancing these rights incorrectly in Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park, I argued that equal importance should be attached to the rights to equality and religious and associational liberty, and that the correct balancing of these rights requires that religious groups be permitted to discriminate in their employment practices in respect of positions sufficiently close to the core of religious doctrine. My article has elicited two thoughtful replies, one by Prof Stu Woolman and the other by Prof David Bilchitz. Bilchitz argues that I afford the right to equality insufficiently robust protection and claims that in South Africa the right to equality should be accorded ‘primacy’ relative to the rights to religious and associational liberty in cases in which these rights conflict. Woolman contends that the protection I provide for the right to freedom of association is too weak and that religious associations should have more extensive freedom to discriminate than I allow. In this article, effectively a rejoinder, I defend my assessment of Strydom and my approach to the present conflict of rights against several objections advanced by Bilchitz and Woolman. I argue for a workable compromise between their positions: equality must often prevail (that is, in the public, political and ordinary commercial spheres, and where the position in respect of which religious associations seek to discriminate is distant from the doctrinal core of the religion concerned), but sometimes the claims of religious voluntary associations to discriminate in accordance with settled religious beliefs should be accommodated.