Die akte van menseregte en kerklike tug: ’n potensiële dilemma

Abstract

Recent cases of ecclesiastical discipline have focussed attention on a possible conflict between the human rights guaranteed in the South African Constitution of 1996 and churches’ doctrinal teaching on moral issues, such as adultery or sexual relations between two persons of the same sex. The Constitution prohibits discrimination on many grounds, also on the grounds of gender and sexual orientation. This prohibition also works horizontally, i e among individual citizens. May a church therefore still limit membership of its clergy to males and may it excommunicate members or clergy who transgress its moral teachings? By way of an analysis of a recent judgment of the Witwatersrand Division of the South African High Court dealing with an order of excommunication (cherem) under Jewish law, it is shown that the joint effect of the constitutional rights to freedom of religion, freedom of association and free participation in religious communities creates sufficient institutional autonomy for churches in these matters, subject to minimal standards of justice and fairness and provided churches have clear teachings on doctrinal issues.