CAPE TOWN: 09 November 2021
The constitutional guarantee of freedom of religion is not a gateway to unfairly discriminate. The Women’s Legal Centre (WLC) has applied to be a friend of the court in the matter of SAHRC and Others vs Beloftebos and Others in order to provide a feminist and gender lens as well as the appropriate application of freedom of religion in this case that has important consequences for the LGBTQIA+ community in South Africa. The owners of the Beloftebos wedding venue that turned away a same-sex couple on religious grounds should not be allowed to justify their actions on the grounds of religious freedom.
Human rights actors continue to stand firm against the worrying trend, increasing both globally and in South Africa, of using the right to freedom of religion to undermine the rights of LGBTQIA+ persons.
Last year, the South African Human Rights Commission and a same-sex couple took the owners of the Beloftebos Wedding Venue to the Equality Court of the Western Cape High Court after the owners refused to allow them and other couples to hold their wedding reception at the venue. The owners have claimed that their Christian beliefs entitle them to discriminate against same-sex couples based on their religious freedom, as their beliefs do not allow for marriage unless it is between a man and womxn.
The WLC has applied to be amicus curiae (friend of the court) in the case specifically to focus on assisting the Court in a number of ways: by providing an important feminist lens on the legal framework through which to view the legal issues before court, to provide historical context of the use of religion as a tool for discrimination as well as the current trends, to provide the constitutionally appropriate analysis of the right to freedom of religion and to assist the Court to understand the potential impact of this matter will have on vulnerable womxn and people of diverse SOGIESC (sexual orientation, gender identity, gender expression and sex characteristics) generally.
The WLC will submit to Court that freedom of religion is not a gateway to unfairly discriminate and certainly does not justify setting aside section 14 of the Equality Act, and that the Beloftebos respondents hosting policy is unconstitutional to the extent that it does not allow same-sex couples to get married on their premises.
As the WLC submission to the court makes clear, we further submit that if the court were to find that wedding venues and service providers may refuse same-sex couples for religious reasons, the Beloftebos respondents do not qualify for such protection because they have hosted weddings for divorcees, as well as for Muslim and Jewish couples.
This matter, and its outcome, will have a fundamental effect on how the rights to equality and dignity are to be balanced with the right to religion. This in turn will have important consequences for how those rights are applied to womxn in their diversity, and in particular, marginalised and vulnerable womxn. The impact will not only stop at negatively affecting equality and religion but will also impact sexual and reproductive health rights, and specifically the ability for womxn in their diversity to make free and informed decisions about their bodies and reproduction, the right to bodily autonomy, the right to education, the right to health generally and could lead to other forms of violence, stigma and prejudice.
The Women’s Legal Centre is an African feminist legal centre that advances womxn’s rights and equality using tools such as litigation, advocacy, education, advice, research and training.
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