Religion and the law: Exploring the boundaries between the right to equality based on sexual orientation and religious freedom.
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Date
2023
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Abstract
The intersection of religion and law remains complex. It is not simple to find a solution to an
issue that falls within the realm of this area. The right to freedom of religion and equality are
constitutionally protected and sometimes these two constitutional rights become competing
fundamental human rights. The religious injunction against same-sex marriage is an issue
which falls squarely within the complexity of religion and law.
With both equality and freedom of religion at odds with each other, it becomes important to
balance these rights. This cannot be done without acknowledging the fact that religion has
always featured predominantly in our past and influenced many aspects of our lives. However,
our history of past discrimination directed at vulnerable groups must also be acknowledged. It
is for this reason that this thesis examined the legal soundness of the injunction against samesex
marriage in some Christian denominations. With our constitutional objective being to bring
about a cohesive society, a strong presumption in favour of equality must be considered. On
this basis the thesis found that the religious injunction against same-sex marriage was
unconstitutional and therefore legally unsound.
In dealing with these matters our courts need to approach the issue sensitively by considering
transformative remedies without criminal sanctions. It is for this reason that the thesis also
attempted to identify the most appropriate litigation strategy that affected parties can rely on
when challenging the injunction against same-sex marriage. The Equality court was deemed
the most appropriate forum for resolving disputes between religious denominations and their
LGBTQI+ congregants. The transformative remedies which the court will consider are
potentially available in the Promotion of Equality and Prevention of Unfair Discrimination Act
4 of 2000. Transformative remedies are in principle more acceptable to religious denominations
as they refrain from interfering with the core doctrinal beliefs of the church but also allow these
religious denominations the time to review their policies and motivate for change. It also
minimises the possibility of a split in the church and adheres to the doctrine of constitutional
subsidiarity.
Description
Doctoral Degree. University of KwaZulu-Natal, Pietermaritzburg.