Concourt rejects gay minister's case

25 November 2015 - 02:25 By Ernest Mabuza

The Constitutional Court yesterday refused to hear an appeal by a gay church minister who claimed she was the victim of unfair discrimination by the church. The court said if it were to decide the unfair discrimination claim, it would do so as a court of first and last instance in a dispute of considerable complexity and vast public repercussions arising from competing constitutional claims.Deputy Chief Justice Dikgang Moseneke said he was persuaded by the church's submissions that arbitration would be the ideal forum for the former minister and the church to see where the balance between belief and tolerance should be struck.After announcing to her congregation that she was going to marry her same-sex life partner in 2009, Methodist Church minister Ecclesia de Lange was suspended and later discontinued as a minister in February 2010.De Lange referred the matter to arbitration in terms of the church's laws but the parties were unable to agree on the terms of the arbitration.De Lange then launched an application before the high court in Cape Town to set aside the arbitration agreement, arguing that the process would be "futile, unfair and serve no purpose".The high court dismissed her application, and so did the Supreme Court of Appeal (SCA).At the high court, De Lange said that she was not relying on a claim of unfair discrimination and this is what sunk her case before the SCA and the Constitutional Court.The SCA said last year that because she had abandoned that claim, it was unnecessary for the court to engage with the clash between the rights of freedom of association and religious association on the one hand, and the right to equality on the other.In a unanimous judgment written by Moseneke, the Constitutional Court said while the dispute raised numerous difficult questions, one of the main issues was whether the court should decide the unfair discrimination case that was now the mainstay of De Lange's case.Moseneke said De Lange was not free to raise the claim of unfair discrimination for the first time in the SCA. He said the doctrine of constitutional subsidiarity required an unfair discrimination claim to be heard by the Equality Court first.De Lange argued that the church’s stance on same-sex marriages was irrational as it allowed her to stay in the church’s manse with her partner, but drew a line at recognising same-sex marriage.The church said its doctrine recognised a marriage only between one man and one woman. It said it tolerated homosexual relationships but required its ministers not to enter into same-sex marriages.Presiding Bishop of the Methodist Church Ziphozihle Siwa said outside court that although he was still to study the judgment, the dismissal of De Lange’s application was no reason to celebrate. He said the matter should not have come to court.De Lange, who was not at court on Tuesday, said she was still to discuss the judgment with her lawyers, but she was deeply disappointed. She said she would comment comprehensively at a later stage.Freedom of Religion South Africa leader Reverend Moss Ntlha said the judgment recognised that churches had a right to decide what they regarded as a marriage.Additional Reporting by Philani Nombembe..

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