SA civil society questions the Chief Justice’s desire to incorporate religion cites U.S. as example

In a strongly worded article the South African Civil Society Information Service has questioned the impartiality of the current South African, (SA), Chief Justice and his desire to incorporate religion into the SA justice system. As a christian, Chief Justice Mogoeng Mogoeng, has previously assured the public that his religious beliefs will not influence his rulings.  The article highlights South Africa’s equal protection under the law standard which is similar to the U.S. fourteenth amendment equal protection criteria where everyone under the law is equal. Although the article cites the “land of the free” as an example, analogy can be drawn to the U.S. legal framework as diverse religious influences have been allowed to permeate every day rulings and members of certain religious groups have a strong foothold in various courts, permeating said court with their beliefs rather than allowing for the equal standard under the law enshrined in the U.S. constitution and upheld in precedent rulings.

Indeed as Justice Chin, from the CA Supreme Court pointed out, paraphrasing Alexander Hamilton “judges are officers of the “weakest” branch of government; yet they have the “arduous . . . duty” of serving as “the bulwarks of a limited constitution against legislative encroachments” and “safeguard[ing]” the Constitution and the rights of individuals from “the effects of occasional illhumors in . . . society.”

Judges must possess not only great knowledge and skill in the law, Hamilton said, but also integrity, moderation, and an “uncommon portion of fortitude.” In seeking to maintain judicial impartiality in California, we too must promote the selection and retention of judges who have these outstanding qualities.

The standard of judicial accountability in decision-making, however, was to be “inflexible and uniform adherence to” the law, which, Hamilton said, is “indispensable in the courts of justice.”

The United States has a strict separation of church and state displayed in various precedent rulings cited below. However, some judicial officers, notably in the Riverside Superior Court, allow their religious beliefs and influences to prevail over the equal application of law.

The Supreme Court, in its ten commandment ruling, MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY. (03-1693) 545 U.S. 844 (2005),  354 F.3d 438,  has already ruled on allowing religious practices in a Court and has specified that the separation of church and state exists and that discrimination of one religious practice over another violates the first amendment establishment clause.

Other Supreme Court cases have followed the same pattern.

Torcaso v. Watkins,  367 U.S. 488 (1961)

Court holds that the state of Maryland cannot require applicants for public office to swear that they believed in the existence of God. The court unanimously rules that a religious test violates the Establishment Clause.

Engel v. Vitale, 82 S. Ct. 1261 (1962)

Any kind of prayer, composed by public school districts, even nondenominational prayer, is unconstitutional government sponsorship of religion.

Abington School District v. Schempp, 374 U.S. 203 (1963)

Court finds Bible reading over school intercom unconstitutional and Murray v. Curlett, 374 U.S. 203 (1963) – Court finds forcing a child to participate in Bible reading and prayer unconstitutional.

Lemon v. Kurtzman, 91 S. Ct. 2105 (1971)

Established the three part test for determining if an action of government violates First Amendment’s separation of church and state:
1) the government action must have a secular purpose;
2) its primary purpose must not be to inhibit or to advance religion;
3) there must be no excessive entanglement between government and religion.

Stone v. Graham, 449 U.S. 39 (1980)

Court finds posting of the Ten Commandments in schools unconstitutional.

Wallace v. Jaffree, 105 S. Ct. 2479 (1985)

State’s moment of silence at public school statue is unconstitutional where legislative record reveals that motivation for statute was the encouragement of prayer. Court majority silent on whether “pure” moment of silence scheme, with no bias in favor of prayer or any other mental process, would be constitutional.

Edwards v. Aquillard, 107 S. Ct. 2573 (1987)

Unconstitutional for state to require teaching of “creation science” in all instances in which evolution is taught. Statute had a clear religious motivation.

Allegheny County v. ACLU, 492 U.S. 573 (1989)

Court finds that a nativity scene displayed inside a government building violates the Establishment Clause.

Lee v. Weisman,   112 S. Ct. 2649 (1992)

Unconstitutional for a school district to provide any clergy to perform nondenominational prayer at elementary or secondary school graduation. It involves government sponsorship of worship. Court majority was particularly concerned about psychological coercion to which children, as opposed to adults, would be subjected, by having prayers that may violate their beliefs recited at their graduation ceremonies.

The SACSIS article authored by Dale T. McKinley has been included below.

In a democracy worthy of the name, no specific belief, conscience, thought, opinion or religion has special legal or societal status.

As captured in the equality clause of South Africa’s Bill of Rights, “everyone is equal before the law”, wherein “equality includes the full and equal enjoyment of all rights and freedoms”.

Those rights and freedoms encompass the political, civil, legal, environmental, social, economic and cultural. Simply put, all of our democratic rights and associated freedoms are indivisible.

Unfortunately, it would appear as though Chief Justice Mogoeng Mogoeng, alongside many of our politicians and citizens need to be reminded of this basic democratic principle.

Much of the furore and debate that has surfaced over the recent public comments made by the Chief Justice have revolved around his argument that South Africa “can only become a better people if religion could be allowed to influence the laws that govern our daily lives starting with the Constitution …”

More specifically Mogoeng’s contention that a wide range of societal problems such as “maladministration, crime, corruption [and] dishonesty” along with (religiously-infused and defined) personal behaviour/action such as “adultery, fornication [and] divorce” would, “be effectively turned around significantly, if religion were to be factored into the law-making process”, really stirred the pot.

While there are certainly many reasons to be seriously concerned about the Chief Justice’s views, whether from a legal, moral or political perspective, much of the ensuing commentary has unfortunately revolved around whether he should have even made his views public. This is a false debate. We cannot pick and choose which rights and freedoms can or cannot be enjoyed and by whom simply because we don’t like them or because of the individual’s institutional standing.

However, there is a more fundamentally worrying aspect of Mogoeng’s utterances that has been largely ignored. As opposed to merely conveying the hope that religion (in particular his own variant) might, at some point, play a more prominent role in shaping the law, Mogoeng explicitly stated that “laws must be enacted to advance and not to narrow the operation of, the right to freedom of religion”.

While a strong case can certainly be made for appropriate laws in countries that presently have little or no constitutional or other legal protection when it comes to the “right of freedom of religion”, the immediate question that arises for those who live in South Africa is why on earth would we need such additional laws?

The right to freedom of religion is already constitutionally protected and unlike a host of other rights and freedoms, such as the right to a range of basic needs/services as well as the right to freedom of expression and access to information, there are no discernable contemporary threats or politically-motivated attempts to undermine this particular right.

Given the lack of an objective basis for Mogoeng’s call – as specifically applied to South Africa – it is then to the subjective that we must turn. In this respect, the only rational explanation is that the Chief Justice desires to see the right to freedom of religion given special legal and political treatment and protection above and beyond that accorded to all other rights and freedoms contained in the Constitution.

On the juridical front such a desire, if practically realised, would clearly be unconstitutional. We live in a democracy in which our constitution clearly delineates that there is no hierarchy of rights and where every right/freedom contained therein may be limited by a law of general application. As the Bill of Rights avers and which Deputy Chief Justice Moseneke specifically reminded us of not long ago, the right to religious freedom is not absolute and its scope may be limited by other rights.

Further though, in his recent comments Mogoeng painted a picture of imminent and dark threats to freedom of religion (in all “pluralistic societies” in Africa), imbuing the associated right with an almost super-natural character. He stated: “Religious freedom is … a bulwark against violent extremism [and] failure to respect and entrench the culture of religious freedom could result in a climate of intolerance and impunity that emboldens those who ferment hatred and violence in our societies.”

Leaving aside the hyperbole and ahistorical bent, such claims, when placed in the context of Mogoeng’s well-publicised views on religion, social relations and his political pedigree, surface a decidedly negative interpretation. In this reading, Mogoeng’s comments are much closer to the discourse of the religious right in the USA.

In the ‘land of the free’, the (Christian) religious right have successfully used the call for expanded freedom of religion, always making sure to accentuate its positive societal attributes, to cover for the championing of laws, social attitudes and political practices that practically encourage and entrench a climate of intolerance, impunity and hatred. Under this cover, there is now an ever-expanding campaign to effectively by-pass whatever jurisprudence that clashes with the values and practices of such self-constructed ‘freedom of religion’.

Anyone, and in the USA there are many, who has tried to remind the religious right that freedom of religion does not trump all the other rights and freedoms in that country’s Bill of Rights, have themselves been accused of intolerance, of attempting to impose ‘a dictatorship of secularism’ and yes, of directly opposing the word and will of God (in this case, the Christian variety). You get the picture.

Back in 2000 the Constitutional Court ruled, in the case of Christian Education South Africa v Minister of Education that the right to freedom of religion did not entitle Christian private schools to carry out their biblically-sourced belief in corporal punishment. It was a simple case of applying South Africa’s general law which prohibits corporal punishment in schools on an equal basis. In other words, there are no exceptions on the basis of ‘the right to freedom of religion’.
Mogoeng has publicly stated that he would not allow his religiously-sanctioned homophobia to supersede the constitutional protection of same-sex relationships. However, the point here is not so much about the direct imposition of specific religious beliefs in law but about using freedom of religion to sanction and rationalise a parallel legal and social world that stands above and beyond other rights and freedoms.

Will the present Chief Justice allow his religious fervour, under the cover of advancing the “right to freedom of religion”, to muddy our constitutional and societal waters? We should know soon enough.


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