Religion and the public sphere: Towards a model that positively recognises diversity

South African Journal on Human Rights

Volumn 28, Issue 2, 2012, Pages 146-175

  Bilchitz, David ^a   Williams, Alistair ^a  

^a UNIVERSITY OF JOHANNESBURG   (South Africa)

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[No Author keywords available]

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EID: 84869850148     PISSN: 02587203     EISSN: 19962126     Source Type: Journal    
DOI: 10.1080/19962126.2012.11865041     Document Type: Note

References (114)

1. K Klare 'Legal Culture and Transformative Constitutionalism' (1998) 14 SAJHR 146.
2. This has been recognised by the Constitutional Court in S v Lawrence; S v Nagel; S v Solberg 1997 4 SA 1176 (CC) paras 99-102 (Chaskalson P); paras 116, 118-9 (O'Regan J).
3. P Farlam 'Freedom of Religion, Belief and Opinion' in S Woolman & M Bishop (eds) Constitutional Law of South Africa 2 ed (2003) Chapter 41, 26 does offer a brief consideration of alternative models. However, we hope in this article to engage with the differing models in greater depth and in light of arguments rooted in political philosophy, in order to provide a more comprehensive analysis against which the South African context can be considered.
4. If seen in a linear way, it is often argued that the greatest protection for religious freedom rests in the middle; some contend that the picture should be one of an open loop or horse shoe, with the most religious freedom located at the top, and the least religious freedom located at either open end. See also, W Cole Durham 'Perspectives on Religious Liberty: A Comparative Frame Work' in J Van de Vyver & J Witte (eds) Religious Human Rights in Global Perspective (2006) Figure 3, 18.
5. John Rawls recognises the central interest of individuals in being able to 'revise one's conception of the good': see J Rawls Political Liberalism (1996) 30.
6. If seen in a linear way, it is often argued that the greatest protection for religious freedom rests in the middle; some contend that the picture should be one of an open loop or horse shoe, with the most religious freedom located at the top, and the least religious freedom located at either open end. See also, W Cole Durham 'Perspectives on Religious Liberty: A Comparative Frame Work' in J Van de Vyver & J Witte (eds) Religious Human Rights in Global Perspective (2006) Figure 3, 18.
7. J Locke A Letter Concerning Toleration: Latin and English Texts (Martinus Nijhoff 1963) 15-23. Locke argues the state is constituted 'only for the procuring, preserving, and advancing of... civil interests', which include, amongst other things, life, liberty, and health. Power is not conferred on the state to decide religious matters because faith is a personal matter that cannot be forced upon individuals by others.
8. R Dworkin Taking Rights Seriously (1977) 272-7.
9. See generally D Meyerson 'Why Religion Belongs in the Public Sphere, Not the Public Square' in P Cane, C Evans & Z Robinson (eds) Law and Religion in Theoretical and Historical Context (2008) 44-53.
10. R Dworkin Taking Rights Seriously (1977) 272-7.
11. R Dworkin Taking Rights Seriously (1977) 272-7.
12. See generally D Meyerson 'Why Religion Belongs in the Public Sphere, Not the Public Square' in P Cane, C Evans & Z Robinson (eds) Law and Religion in Theoretical and Historical Context (2008) 44-53.
13. John Rawls recognises the central interest of individuals in being able to 'revise one's conception of the good': see J Rawls Political Liberalism (1996) 30.
14. John Rawls recognises the central interest of individuals in being able to 'revise one's conception of the good': see J Rawls Political Liberalism (1996) 30.
15. If seen in a linear way, it is often argued that the greatest protection for religious freedom rests in the middle; some contend that the picture should be one of an open loop or horse shoe, with the most religious freedom located at the top, and the least religious freedom located at either open end. See also, W Cole Durham 'Perspectives on Religious Liberty: A Comparative Frame Work' in J Van de Vyver & J Witte (eds) Religious Human Rights in Global Perspective (2006) Figure 3, 18.
16. However, a state that respects equality and diversity should be seeking to adopt a 'principled pluralism' model, rather than one of 'pragmatic pluralism'; see R Ahdar & I Leigh Religious Freedom in the Liberal State (2005) 84-7.
17. J Locke A Letter Concerning Toleration: Latin and English Texts (Martinus Nijhoff 1963) 15-23. Locke argues the state is constituted 'only for the procuring, preserving, and advancing of... civil interests', which include, amongst other things, life, liberty, and health. Power is not conferred on the state to decide religious matters because faith is a personal matter that cannot be forced upon individuals by others.
18. W Brugger 'Structural Norms and Constitutional Rights in Church-State Relations' in W Brugger & M Karayanni (eds) Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law (2007) 21, 31.
19. W Brugger 'Structural Norms and Constitutional Rights in Church-State Relations' in W Brugger & M Karayanni (eds) Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law (2007) 21, 31.
20. If seen in a linear way, it is often argued that the greatest protection for religious freedom rests in the middle; some contend that the picture should be one of an open loop or horse shoe, with the most religious freedom located at the top, and the least religious freedom located at either open end. See also, W Cole Durham 'Perspectives on Religious Liberty: A Comparative Frame Work' in J Van de Vyver & J Witte (eds) Religious Human Rights in Global Perspective (2006) Figure 3, 18.
21. W Brugger 'Structural Norms and Constitutional Rights in Church-State Relations' in W Brugger & M Karayanni (eds) Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law (2007) 21, 31.
22. W Brugger 'Structural Norms and Constitutional Rights in Church-State Relations' in W Brugger & M Karayanni (eds) Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law (2007) 21, 31.
23. Attempts are often made at justification of this state of affairs in terms of secularisation-religious symbols and activities in the public sphere have lost their original religious meaning-and trivialisation-any symbolic effect is too minimal to require change. W Sadurski 'Neutrality of Law towards Religion' (1990) 12 Sydney LR 420, 428-30, warns that the 'secularisation' and 'de minimis' arguments are rarely sound; they should be treated with much caution, and addressed specifically to the circumstances of the case in question.
24. J Temperman State-Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (2010) 161-7.
25. See generally D Meyerson 'Why Religion Belongs in the Public Sphere, Not the Public Square' in P Cane, C Evans & Z Robinson (eds) Law and Religion in Theoretical and Historical Context (2008) 44-53.
26. However, a state that respects equality and diversity should be seeking to adopt a 'principled pluralism' model, rather than one of 'pragmatic pluralism'; see R Ahdar & I Leigh Religious Freedom in the Liberal State (2005) 84-7.
27. Lynch, Mayor of Pawtucket v Donnelly 465 US 668, 687-8 (1984).
28. See Part III below for arguments as to why this model is particularly ill-suited to South Africa.
29. J Temperman State-Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (2010) 161-7.
30. W Brugger 'Structural Norms and Constitutional Rights in Church-State Relations' in W Brugger & M Karayanni (eds) Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law (2007) 21, 31.
31. J Temperman State-Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (2010) 161-7.
32. First Amendment of the United States Constitution 1787/1791 .
33. Everson v Board of Education 330 US 1 (1947) (Justice Black) 15.
34. W Brugger 'Structural Norms and Constitutional Rights in Church-State Relations' in W Brugger & M Karayanni (eds) Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law (2007) 21, 31.
35. J Temperman State-Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (2010) 161-7.
36. John Rawls recognises the central interest of individuals in being able to 'revise one's conception of the good': see J Rawls Political Liberalism (1996) 30.
37. M McConnell 'Equal Treatment of Religion in a Pluralistic Society' in S Monsma & J Soper (eds) (1998) Equal Treatment 33, in I Benson 'Living Together with Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today' (2010) 13.
38. Attempts are often made at justification of this state of affairs in terms of secularisation-religious symbols and activities in the public sphere have lost their original religious meaning-and trivialisation-any symbolic effect is too minimal to require change. W Sadurski 'Neutrality of Law towards Religion' (1990) 12 Sydney LR 420, 428-30, warns that the 'secularisation' and 'de minimis' arguments are rarely sound; they should be treated with much caution, and addressed specifically to the circumstances of the case in question.
39. School prayer is a more complex example, as the baseline of neutrality is unclear. For religious people often the exclusion of religious prayer from a public space is not neutral.
40. However, a state that respects equality and diversity should be seeking to adopt a 'principled pluralism' model, rather than one of 'pragmatic pluralism'; see R Ahdar & I Leigh Religious Freedom in the Liberal State (2005) 84-7.
41. There is some complexity here as it can be argued that the removal of head-coverings may protect the equal treatment of men and women in the public sphere. For reasons of length, we cannot consider this conflict in more detail here.
42. We will return to this question in relation to the model that should be adopted for South Africa.
43. W Brugger 'Structural Norms and Constitutional Rights in Church-State Relations' in W Brugger & M Karayanni (eds) Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law (2007) 21, 31.
44. J Temperman State-Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (2010) 161-7.
45. If seen in a linear way, it is often argued that the greatest protection for religious freedom rests in the middle; some contend that the picture should be one of an open loop or horse shoe, with the most religious freedom located at the top, and the least religious freedom located at either open end. See also, W Cole Durham 'Perspectives on Religious Liberty: A Comparative Frame Work' in J Van de Vyver & J Witte (eds) Religious Human Rights in Global Perspective (2006) Figure 3, 18.
46. If seen in a linear way, it is often argued that the greatest protection for religious freedom rests in the middle; some contend that the picture should be one of an open loop or horse shoe, with the most religious freedom located at the top, and the least religious freedom located at either open end. See also, W Cole Durham 'Perspectives on Religious Liberty: A Comparative Frame Work' in J Van de Vyver & J Witte (eds) Religious Human Rights in Global Perspective (2006) Figure 3, 18.
47. If seen in a linear way, it is often argued that the greatest protection for religious freedom rests in the middle; some contend that the picture should be one of an open loop or horse shoe, with the most religious freedom located at the top, and the least religious freedom located at either open end. See also, W Cole Durham 'Perspectives on Religious Liberty: A Comparative Frame Work' in J Van de Vyver & J Witte (eds) Religious Human Rights in Global Perspective (2006) Figure 3, 18.
48. R Dworkin Taking Rights Seriously (1977) 272-7.
49. This would be a counter-objection by those favouring equality of welfare or a capabilities view. See, for instance, R Goodin 'Egalitarianism, Fetishistic and Otherwise' (1987) 98 Ethics 44-9.
50. M Nussbaum Women and Human Development (2000) 68-9.
51. Attempts are often made at justification of this state of affairs in terms of secularisation-religious symbols and activities in the public sphere have lost their original religious meaning-and trivialisation-any symbolic effect is too minimal to require change. W Sadurski 'Neutrality of Law towards Religion' (1990) 12 Sydney LR 420, 428-30, warns that the 'secularisation' and 'de minimis' arguments are rarely sound; they should be treated with much caution, and addressed specifically to the circumstances of the case in question.
52. J Temperman State-Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (2010) 161-7.
53. J Temperman State-Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (2010) 161-7.
54. This and other problems of representation occur in Germany. For example, a lack of representatives recognised by the relevant Islamic communities mean that Islam generally cannot benefit from public corporation status, and make it difficult to determine the curricula for religious instruction in public schools. G Robbers 'Religious Freedom in Germany' (2001) BYU LR 643, 657-8.
55. J Temperman State-Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (2010) 161-7.
56. This interpretive approach is outlined in S v Makwanyane 1995 (3) SA 391 (CC) paras 9-10.
57. P de Vos 'A Bridge Too Far?: History as Context in the Interpretation of the South African Constitution' (2001) 17 SAJHR 1.
58. We cannot offer a comprehensive treatment here but simply identify some of the salient features that have implications for the state-religion relationship in the future. For a little more detail and engagement with the meaning of the past for current constitutional controversies, see D Bilchitz 'Should Religious Associations be Allowed to Discriminate?' (2011) 27 SAJHR 219.
59. S v Lawrence; S v Nagel; S v Solberg 1997 4 SA 1176.
60. This has been recognised by the Constitutional Court in S v Lawrence; S v Nagel; S v Solberg 1997 4 SA 1176 (CC) paras 99-102 (Chaskalson P); paras 116, 118-9 (O'Regan J).
61. This has been recognised by the Constitutional Court in S v Lawrence; S v Nagel; S v Solberg 1997 4 SA 1176 (CC) paras 99-102 (Chaskalson P); paras 116, 118-9 (O'Regan J).
62. There is a large amount of literature on this topic. See, for instance, J Cochrane, J De Gruchy & S Martin Facing the Truth: South African Faith Communities and the Truth and Reconciliation Commission (1999).
63. R Elphick & R Davenport (eds) Christianity in South Africa: A Political, Social and Cultural History (1997)
64. G Abraham The Catholic Church and Apartheid: The Response of the Catholic Church of South Africa to the First Decade of National Party Rule, 1948-1957 (1989).
65. See T Kuperus State, Civil Society and Apartheid in South Africa: An Examination of Dutch Reformed Church-State Relations (1999) 2.
66. J Kinghorn 'The Theology of Separate Equality: A Critical Outline of the DRC's Position on Apartheid' in M Prozesky (ed) Christianity in South Africa (1990) 57, 65.
67. C du Toit 'Religious Freedom and Human Rights in South Africa After 1996: Responses and Challenges' (2006) Brigham Young Univ LR 677, 684.
68. See, for instance, the essay by J Cochrane 'Christian Resistance to Apartheid: Periodisation, Prognosis' in Prozesky 81 ff.
69. This has been recognised by the Constitutional Court in S v Lawrence; S v Nagel; S v Solberg 1997 4 SA 1176 (CC) paras 99-102 (Chaskalson P); paras 116, 118-9 (O'Regan J).
70. This has been recognised by the Constitutional Court in S v Lawrence; S v Nagel; S v Solberg 1997 4 SA 1176 (CC) paras 99-102 (Chaskalson P); paras 116, 118-9 (O'Regan J).
71. Unfortunately, the last comprehensive survey of religious beliefs and identity in South Africa comes from the 2001 Census . Regrettably, the 2011 Census did not have questions relating to religion and thus a more recent accurate picture is hard to attain.
72. S Rule 'Religiosity and Quality of Life in South Africa' (2007) 81 Social Indicators Research 417, 421.
73. Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) para 36.
74. Unfortunately, the last comprehensive survey of religious beliefs and identity in South Africa comes from the 2001 Census . Regrettably, the 2011 Census did not have questions relating to religion and thus a more recent accurate picture is hard to attain.
75. This has been recognised by the Constitutional Court in S v Lawrence; S v Nagel; S v Solberg 1997 4 SA 1176 (CC) paras 99-102 (Chaskalson P); paras 116, 118-9 (O'Regan J).
76. C du Toit 'Religious Freedom and Human Rights in South Africa After 1996: Responses and Challenges' (2006) Brigham Young Univ LR 677, 684.
77. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 90 (Sachs J) (footnotes omitted).
78. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 90 (Sachs J) (footnotes omitted).
79. Rail Commuters Community Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) para 69 (O'Regan J).
80. This has been recognised by the Constitutional Court in S v Lawrence; S v Nagel; S v Solberg 1997 4 SA 1176 (CC) paras 99-102 (Chaskalson P); paras 116, 118-9 (O'Regan J).
81. See, for example, the Recognition of Customary Marriages Act 120 of 1998, which allows for polygamy under certain circumstances, and the Muslim Marriages Bill (Government Gazette 21 January 2011) .
82. P Farlam 'The Ambit of the Right to Freedom of Religion: A Comment on S v Solberg' (1998) 14 SAJHR 298, 310-8 approves of this position. Both Chaskalson P and Farlam seem to interpret equality as entailing identical treatment. We argue that this is a misunderstanding, and equality rather involves treating individuals with equal concern and respect, which will not always amount to identical treatment. In our view, this point together with the requirement that s 9 (equality) & section 15 (freedom of religion) be read consistently with one another, help resolve a number of the objections raised by Farlam, 314-6 (for reasons of length, we leave the matter here).
83. This has been recognised by the Constitutional Court in S v Lawrence; S v Nagel; S v Solberg 1997 4 SA 1176 (CC) paras 99-102 (Chaskalson P); paras 116, 118-9 (O'Regan J).
84. This has been recognised by the Constitutional Court in S v Lawrence; S v Nagel; S v Solberg 1997 4 SA 1176 (CC) paras 99-102 (Chaskalson P); paras 116, 118-9 (O'Regan J).
85. This has been recognised by the Constitutional Court in S v Lawrence; S v Nagel; S v Solberg 1997 4 SA 1176 (CC) paras 99-102 (Chaskalson P); paras 116, 118-9 (O'Regan J).
86. As such, the problem of what is to be equalised rears its head significantly-we shall deal with this below under the value of dignity.
87. Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC).
88. Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC).
89. MEC for Education: KwaZulu-Natal v Pillay 2008 (1) SA 474 (CC) para 103 (Langa CJ).
90. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 90 (Sachs J) (footnotes omitted).
91. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 90 (Sachs J) (footnotes omitted).
92. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 90 (Sachs J) (footnotes omitted).
93. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 90 (Sachs J) (footnotes omitted).
94. Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; v Minister of Home Affairs 2000 (3) SA 936 (CC) para 35 (O'Regan J).
95. Harksen v Lane NO 1998 (1) SA 300 (CC) paras 46 & 53 (Goldstone J), para 91 (O'Regan J).
96. See, for instance, A Chaskalson 'Third Bram Fisher Lecture' (2000) 16 SAJHR 193.
97. S Cowen 'Can Dignity Guide South Africa's Equality Jurisprudence' (2001) 17 SAJHR 34.
98. Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; v Minister of Home Affairs 2000 (3) SA 936 (CC) para 35 (O'Regan J).
99. P Farlam 'Freedom of Religion, Belief and Opinion' in S Woolman & M Bishop (eds) Constitutional Law of South Africa 2 ed (2003) Chapter 41, 26 does offer a brief consideration of alternative models. However, we hope in this article to engage with the differing models in greater depth and in light of arguments rooted in political philosophy, in order to provide a more comprehensive analysis against which the South African context can be considered.
100. R Malherbe 'Some Thoughts on Unity, Diversity and Human Dignity in the New South Africa' (2007) 1 TSAR 127, 132.
101. John Rawls recognises the central interest of individuals in being able to 'revise one's conception of the good': see J Rawls Political Liberalism (1996) 30.
102. Le Roux v Dey 2011 (3) SA 274 (CC) paras 138 (Brand AJ), and 154, 189 (Froneman J and Cameron J).
103. Le Roux v Dey 2011 (3) SA 274 (CC) paras 138 (Brand AJ), and 154, 189 (Froneman J and Cameron J).
104. Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) para 36.
105. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 90 (Sachs J) (footnotes omitted).
106. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 90 (Sachs J) (footnotes omitted).
107. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 90 (Sachs J) (footnotes omitted).
108. Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) para 36.
109. Section 18 of the Basic Conditions of Employment Act 75 of 1997.
110. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 90 (Sachs J) (footnotes omitted).
111. However, a state that respects equality and diversity should be seeking to adopt a 'principled pluralism' model, rather than one of 'pragmatic pluralism'; see R Ahdar & I Leigh Religious Freedom in the Liberal State (2005) 84-7.
112. R Gavison & N Perez 'Days of Rest in Multicultural Societies: Private, Public, Separate?' in Law and Religion in Theoretical and Historical Context (2008) 188, 209.
113. R Gavison & N Perez 'Days of Rest in Multicultural Societies: Private, Public, Separate?' in Law and Religion in Theoretical and Historical Context (2008) 188, 209.
114. See the interesting discussion by Gavison & Perez (ibid), who argue that the legitimacy of days of rest reflecting majority culture depends on the accommodation of minority groups. This is necessary to respect the individual well-being of members of such groups.