THE CHURCHES' ROLE IN A CONSTITUTIONAL DEMOCRACY:
Church-State Relationships

Case Study: The Promotion of Equality Bill

This paper was delivered by Rev. Malcom Damon, Coordinator of the SACC Public Policy Liaison Office, at an interdisciplinary conference entitled "Justice and Responsibility: Conversations on the Foundations of Society, Challenges of the 21st Century" sponsored by the Ecumenical Foundation of South Africa (EFSA) in cooperation with the Center of Theological Inquiry, Princeton, NJ (USA). The conference was held 16-19 April 2000 at the Breakwater Lodge in Cape Town. For more information on the conference and conference papers, please contact Dr. R Koegelenberg at EFSA (tel. +27 21 880 1734; fax. +27 21 880 1735). Douglas Tilton assisted in drafting the paper.

In a session opening with a paper entitled "The Constructive Role Churches Can Play in a Constitutional Democracy", there will, hopefully, be no dispute over whether or not churches have a legitimate role to play in "secular" policy debates. Indeed, I sometimes find that we attempt to erect very artificial barriers between political and spiritual affairs. I hope we share a common understanding that the lives of our people and the realisation of many of the churches' core concerns--for social and economic justice, for an opportunity for all of God's children to enjoy Christ's promise of life abundant--are profoundly affected by the government policy. And that, consequently, Christians, individually and corporately, have an obligation to engage public policy debates. This was clearly the position that ultimately motivated the increasing involvement of churches in the anti-apartheid struggle. It is also the view that prompted the South African Council of Churches (SACC) to establish the Public Policy Liaison Office in 1996.

However, once we have accepted that churches can and should play a constructive role in the public sphere, we are left with a number of practical and theoretical questions about how we exercise that responsibility. This mornng I want to focus on three clusters of questions, then I want to look at a specific case--that of recently-enacted equality legislation--in order to examine the implications of these questions in a concrete situation.

Key questions

The first set of questions has to do with how we understand our objectives when we are called to participate actively in shaping public policy. Are we engaged in a "holy war", a righteous battle to ensure that secular law conforms to a particular interpretation of Biblical justice? Or do we acknowledge that we are engaging in a political struggle, around essentially contested concepts, in a way that is necessarily informed by our ethics, values, and theological understandings?

The second question is: What constitutes responsible criticism? Should the church be content to make broad moral and ethical pronouncements, to highlight the ethical implications of public policy debates, and to frame policy discussions--then sit back and allow others to apply these principles in law and policy making? Or should church representatives be prepared to "roll up their sleeves" and engage in the search for detailed, concrete alternatives--the battles around provisions and language of legislation and regulations?

The third cluster of issues has to do with the extent of state authority and influence over the Church. To what extent do churches have a responsibility to abide by the laws of secular society? Are there church or religious matters where the state should not have power to intervene? If so, how do we determine the boundaries of the state's authority? How does (and how should) policymaking in the public sector influence debates taking place within and among churches on matters of justice and human rights (such as issues relating to the status of women, abortion, homosexuality, religious tolerance, etc.)?

These are clearly very broad topics about which we could have quite a lengthy discussion. But our time is limited. Therefore, I hope to focus my remarks in two ways. First, I want to leave aside a number of other obvious questions, including the question of how churches prioritise the policy issues they take up, given inevitable capacity limitations. I can tell you how we have approached this issue in the SACC. But it seems that other speakers may address this concern, so it will not going to be a focus for me. Second, I want to look at these issues though a particular "keyhole", namely the perspective provided by the Equality Bill. I hope that will help us to identify the practical implications of these concerns in a concrete setting and will encourage people to tease out these implications with respect to other situations.

The Equality Bill

The Promotion of Equality and Prevention of Unfair Discrimination Act was one of a handful of laws required by South Africa's democratic constitution (Act No. 108 of 1996). [However, the Constitution did not require it to have such an unwieldy name, so I intend to refer to the legislation simply as "the Equality Act".] You may be aware that in a number of places the constitution set out a broad right or responsibility, then required enabling legislation to be passed to give effect to the general clause. This more detailed legislation was necessary to define clearly the limits of the right or power, to establish the mechanism by which it could be exercised, to identify officials responsible for implementing the clause or adjudicating claims arising out of it, etc.

Section 9 of the Constitution prohibits unfair discrimination on the basis of "race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth". It also requires the enactment of legislation to "prevent or prohibit" such discrimination. As a result, the Government set up an equality legislation drafting unit within the Human Rights Commission shortly after the certification of the constitution. The unit commissioned a number of studies to explore issues associated with the implementation of Section 9 and to investigate how other states had approached anti-discrimination and equality statutes. A sketchy draft bill began to circulate in late 1998. This underwent considerable change during the next year as a result of workshops, submissions, and input from a expert Reference Group before a Bill was finally tabled in late October 1999. A special ad hoc joint parliamentary committee met through the festive season in order to ensure the adoption of a final--and again radically altered--bill on the eve of the 4 February 2000 deadline.

Throughout 1999, the SACC Public Policy Liaison Office worked closely with a number of human rights advocacy organisations to mobilise support for the bill's objectives and to propose amendments that would enhance its ability to achieve its goals. From the outset, the SACC's response to the legislation was based on our theological understanding of the equal humanity and dignity of all human beings as children of a loving God, created in God's own image.

This has been a common thread throughout the SACC's history. Our "Message to the People of South Africa", issued in June 1968 just days after the formation of the SACC observed:

The first Christians, both Jews and Gentiles, discovered that God was creating a new community in which differences of race, nation, culture, language and tradition no longer had power to separate man from man. We are under an obligation to assert that the most significant features of a man are not the details of his genetic inheritance, not the facts of his ancestry. The most significant features of a man are the characteristics which enable him to be a disciple of Christ--his ability to respond to love, to make choices, to work as a servant of his fellowmen . . . Where differences between people are used as badges or signs of opposing groups, this is due to human sin.

This shared vision of God's "new community" sustained us throughout the struggle against apartheid. Our commitment to realising the ideal of equal treatment has been the touchstone of our support for the transition to democracy and the adoption of the new Constitution and Bill of Rights. Along the way, we have also been awakened to the importance of combatting the injustice of discrimination based on gender, disability, or other "badges".

The SACC made a written submission on the Bill, stressing these themes. We also made an oral presentation to the parliamentary hearings on the bill in November 1999. Appearing on behalf of the SACC, Dr. Russel Botman gave an eloquent exposition the theological basis of our support for the bill's objectives, citing in particular the vision of unity and equality in Christ contained in Galatians 3:28.

Justice and Responsibility in a Constitutional Democracy

During the hearings and in subsequent months, it became clear that a number of Christian groups did not share SACC leaders' understanding of this Biblical vision of equality or its implications for political advocacy. Members of the African Christian Democratic Party (ACDP) and allied organisations took particular exception to the SACC's failure to call for the removal of the words "sexual orientation" from the list of grounds on which unfair discrimination is prohibited--in essence requiring the state to endorse unfair discrimination against gay and lesbian people. Following the hearings, the ACDP and several other like-minded groups circulated statements and "action alerts" attacking the legislation and vilifying the SACC for backing a supposed "homosexual agenda".

The ACDP's reaction to the legislation--and to the non-discrimination clause in particular--came as no surprise. Indeed, the party had unsuccessfully voiced similar objections when the Bill of Rights was being considered in the Constitutional Assembly, and again when the constitution came before the Constitutional Court for certification.

Certainly the ACDP and the SACC have an equal right--and obligation--to articulate their theological views and to advocate political positions on the basis of those beliefs. What requires closer scrutiny is the question of how the ACDP or the SACC--or indeed anyone who engages in faith-based advocacy--understands the ultimate goal of its advocacy efforts. Many of the statements put out by the ACDP imply that its aim is the establishment of a Christian state; some of the materials published by the party's allies see this as an explicit objective.

I want to suggest, however, that the twin imperatives of justice and responsibility require that we reject the pursuit of an avowedly Christian state, a theocracy, in which state power is dedicated to upholding Biblical law. Quite apart from the problem of deciding whose interpretation of Biblical law should be enforced (remember that the architects of apartheid also used the Bible to justify their actions), there is the more fundamental issue of how we understand the Church's political role in a diverse, multi-faith society governed by popularly-elected and constitutionally-regulated representatives.

In the apartheid era, churches called for a complete overhaul of government, the toppling of an illegitimate minority regime and its replacement with a government which enjoyed the consent of all South Africans and which protected all citizens equally. Then, we had no official forum in which we could express our views and no mechanism to ensure that our demands were taken into account in the formulation of national policy. Now, however, we have access to a democratic decision-making structures. With these rights of political participation comes the responsibility to respect the participation of others. If we attempt to Christianise the state, we violate that social compact because we preempt policy decisions and preclude equal participation in public debates.

This is not to say that we should not stand up for our beliefs and values and work to ensure that these are reflected in the law of the land. Of course we must. But we must also accept that we are entering a political arena where our beliefs and values will be tested and contested on political terms. We must resist the temptation to "trump" the views of others on the grounds that "the Bible says this" or "God wants that". Our religious convictions require us to continue to find a prophetic voice in national affairs, while recognising that being prophetic is more than simply invoking Biblical authority to justify one's actions. At the same time, we must renew our commitment to the poor, marginalised and outcast, keeping our sights firmly fixed on that vision of a "new community" marked by equality and justice.

Responsible criticism

Recognising that prophetic voices are rarely heard cheering for the status quo, we must ask the further question: What does it mean to engage in responsible criticism? In 1995, when the SACC was conceptualising its relationship with the state in the democratic era, it formulated the notion of "critical solidarity" to describe that relationship. Notwithstanding some of the objections that have been raised to the use of the term "solidarity" vis a vis the state, this remains the operative paradigm for the SACC's public policy advocacy activities. So how can the SACC approach its role as critic in manner that does not diminish its capacity to support the activities of the state in other ways?

First, we must be thoughtful in our responses to policy and avoid hasty or alarmist claims. In the case of the Equality Act, for example, far-fetched interpretations of key provisions animated some of the opposition from Christian groups. For example, opponents suggested that the Act "might" prohibit the reading of scripture, the expression of opposition to abortion, or the punishment of sexual offenders. Frequently such claims were either based on false assumptions (e.g., that paedophilia would be understood in law as a "sexual orientation") or they ignored competing constitutional rights (e.g., freedom of religion, belief, and expression).

Second, if the church is going to play a constructive role in public policy formation, it should be prepared not only to articulate criticism and concerns with respect to policy proposals, but also to make concrete proposals for correcting the policy deficiencies we identify. Thus, the SACC took part in discussion of the equality legislation from an early stage in its development in an effort to grapple with the problems associated with the elaboration and implementation of the right to equality and to consider its larger implications for South African society. Along the way, we benefitted greatly from the experience and technical expertise of a large number of secular human rights organisations with whom we worked in a loose coalition known as the Equality Alliance. This enabled us not only to isolate problems--gaps in the legislation's coverage, overlap or contradictions in the definitions, narrow or rigid applications of principle, etc--but also to propose alternative formulations that we felt could address these flaws.

Some people may argue that it is not the responsibility of churches or non-governmental organisations to draft legislation. It is the responsibility of the legislature to legislate. I would agree that, in the final analysis, that is the case. However, both morally and strategically, it makes sense for churches to balance criticism with concrete alternatives. Often, the process of developing alternative recommendations helps to clarify our concerns so that our arguments are more accurate and convincing, thereby enabling us to make a more valuable contribution to the perfection of policy. Strategically, the presentation of detailed proposals helps legislators to understand the our concerns in the context of the legislation. Even if the actual language suggested is not considered suitable, it can serve as a model and facilitate amendment of the bill.

(The Promotion of Access to Information Act is an excellent example of this. The SACC and other organisations argued persistently that the bill needed to give effect to and regulate the limited constitutional right of access to information held by private bodies. When the parliamentary committee considering the bill ultimately accepted this argument, they used language proposed by the SACC and COSATU as a starting point for constructing the relevant sections.)

Boundaries of state power

Perhaps the most interesting set of questions to emerge from the debate on the Equality Act has to do with the limits of the state's authority over religious matters. A number of churches and Christian organisations have expressed concerns that human rights activists will initiate litigation in terms of the Act to compel individual Christians or religious denominations to take actions at odds with their theological beliefs or institutional policies.

In general, the envisioned scenarios fall into one of two categories. The first involves the conflicts between religious beliefs and legal requirements in the secular sphere. For example, the ACDP objects that the law will prevent businesses from discriminating against homosexual people in the provision of services or employee benefits. So it will. The Act will also prevent both secular and religious institutions from dismissing (say) an accountant solely on the grounds that she or he is Muslim or disabled. Similarly, a church would not--and should not--have a legal right to refuse to let property to someone on the open market simply because she is black or has had an abortion.

Opponents protest that their right to religious freedom and freedom of conscience is compromised by laws that constrain their ability to discriminate against people whose beliefs, behaviour, or genetic composition they believe to be contrary to the will of God. Yet clearly there are limits to those rights, and those limits are thrown into greatest relief when the rights of one person begin to impinge on the rights of others. Thus, while the state must necessarily protect an individual's right to hold racist personal beliefs, it must also prevent such a person from exercising that right in a manner that threatens or curtails the rights of others.

The second category of scenarios is more problematic. This involves situations where the Act might be used to require a religious denomination to adopt ecclesiastical or sacramental policies at odds with its beliefs. The most commonly cited instances are, of course, the ordination of women or homosexuals and the sanctification of same-sex unions. (The latter case is predicated on the fair assumption that the Act will ultimately compel the state to establish some legal or administrative process, analogous to marriage, for the recognition of same-sex unions.) Clearly the right to freedom of religion and conscience does not justify unfair discrimination by a church in the secular sphere. But does it protect a church that follows discriminatory theological or sacramental practices that would be considered unfair in secular society? If so, where is the boundary of that "protected" sphere? How do we build consensus on this matter and capture that consensus in law or policy so that the boundary is clear to all?

Again, this issue is not unique to the Equality Act or to the emotive issues of the church's treatment of women and homosexuals. It crops up in a number of places. Most labour legislation, for example, is applicable to "employees". But it is not clear from the definition of "employee" whether or not members of the clergy should be considered employees and, if so, who constitutes their "employer". SACC member denominations have widely divergent views on this matter. To some extent, the differing perspectives can be traced to variations in ecclesiastical structure, but even churches with similar structures adopt different positions. If churches feel that labour legislation should not apply to their clergy, what criteria do we use to establish the boundaries of that exemption?

Ultimately, the courts will help to clarify these issues through the development of jurisprudence. However, it may be prudent for church leaders to consider these questions now (rather than waiting until they are parties to litigation) so that they can take the lead in fostering consensus and working to have that consensus embodied in law.

The final, related question I want to put before you this morning concerns the extent to which people of faith have a responsibility to see the changing social and legal context as a challenge to reexamine the validity and relevance of their own beliefs--especially when churches have been involved in facilitating those changes. During the hearings on the Equality Bill, two ANC MPs called attention to the fact that the SACC delegation was all male. They chided churches on their sluggishness in enabling women to participate fully in religious life. Dr. Botman reiterated the confession made both in the SACC's written statement and his oral remarks that the church itself still has not realised its own ideal of equality. What message do we convey when we work to support a piece of legislation like the Equality Act, then fail to implement it in our own denominations--or, worse still, argue that we should be excused from complying with some or all of its provisions?

We acknowledge that God's law is unchanging. But we also recognise that our capacity to comprehend and apply that law is inadequate and imperfect. Contemporary hermeneutics tells us that all interpretation is subjective and influenced by social context. In many occasions in the past, the Church has been called to rethink its position on very basic beliefs, often as a result of new developments in scientific understanding or social conventions. For instance, it was only after women began to demand and win new rights and opportunities in secular society that many churches started to reexamine their policies on ordination of women. Without proposing that churches simply conform to the latest social trend, I want to suggest that social and political changes sometimes give us a gift of new eyes to see God's plan--and our place in it--afresh. Perhaps our greatest responsibility is to be open to that possibility.