A new approach â the constitutionally protected right to freedom of religion
Constitutional change in South Africa took effect on 27 April 1994, when an interim constitution came into force. This was a transitional constitution, aimed at setting out the procedures for the negotiation of a final constitution. After lengthy negotiations, the Constitutional Assembly adopted the final constitution on 8 May 1996, which was certified by the Constitutional Court and signed into law on 4 February 1997. In 1990, during a National Inter-Faith Conference, South African religious groupings got together and adopted a Declaration on Religious Rights and Responsibilities, explaining in concrete terms what the right to freedom of religion meant for religious believers.11 A compromise between a too strict separation between church and state and an approach of endorsing or favouring one religion over others was evident in the drafting of sections 15 and 31 of the Constitution. It does not prevent the state from recognising or supporting religion, but in addition requires the state to treat religions equally. Read together, these two provisions entrench the right of individuals and religious communities to exercise their religion freely. These two provisions have been described as âcomplementary and mutually supportive spheresâ.12
In the South African context, Currie and De Waal13 argue that the debate about the meaning of âreligionâ is unnecessary, because section 15 of the Constitution, apart from protecting the right to freedom of religion, also protects the rights to freedom of conscience, thought, belief and opinion. Section 15 protects a wide range of world-views, including agnosticism and atheism or the freedom to reject any religious beliefs. The South African Constitutional Court in National Coalition for Gay and Lesbian Equality v Minister of Justice 14 observed: âReligious practices are protected because they are considered to be central to human identity and hence to human dignityâ.15 Similarly, in Christian Education South Africa v Minister of Education 16 the same court described the practice of religion as one of the hallmarks of an open, democratic and free society that awakens the âconcepts of self-worth and human dignity which form the cornerstone of human rightsâ.
Those who advocated for religious freedom called for both religious tolerance as well as a secular state which did not give preference to one particular religion over others. According to Currie and De Waal,17 the interpretation of the right to freedom of religion still reflects its historical origins in that it is interpreted in relation to the extent to which the state recognises a religion and how it provides for the freedom to exercise or how it establishes that religion. The drafters of the Constitution was aware of the dangers associated with a too strict separation between church and state, but similarly one that is too close to the church, as was the case during the apartheid regime. Particularly in relation to religion and religious diversity, the Constitution has been described as one of âprofound toleration and accommodationâ.18 Various provisions in the Constitution support this view and the Constitutional Court, through its decisions, has emphasised the important role of religion, not only in society, but also the importance for the state as a component of our constitutional democracy.
11 I Currie and J De Waal The Bill of Rights Handbook 6 ed (2013) 315.
12 Currie and De Waal The Bill of Rights Handbook 316.
13 Currie and De Waal The Bill of Rights Handbook 316.
14 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC).
15 National Coalition para 26.
16 Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) para 36.
17 Currie and De Waal The Bill of Rights Handbook 315.
18 J Van der Vyver âEquality and Sovereignty of Religious Institutions: A South African Perspectiveâ Santa Clara Journal of International Law (2012) 10(1) 157.
Section 15 of the Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion. However, individuals and community may not exercise the right in a manner inconsistent with the other provisions of the Bill of Rights. Section 15 includes different aspects of religious freedom, such as the freedom of religious choice, freedom of religious observance, freedom of religious teaching and freedom to propagate a religion.19 The right to freedom of religious choice is an individual right and doe...