Rul­ing on re­li­gious tol­er­ance at schools

The Star Early Edition - - INSIDE -

IN GEN­ERAL the South African con­sti­tu­tion, as is clear from its pre­am­ble, where ref­er­ence to de­ity oc­curs, re­flects a bias in favour of re­li­gion in gen­eral, as op­posed to athe­ism and ag­nos­ti­cism. This bias in favour of re­li­gion is a de­par­ture from the pure prin­ci­ple of equal­ity be­tween be­liev­ers and non-be­liev­ers, as set out in sec­tion nine.

In par­tic­u­lar, sec­tion 15 of the con­sti­tu­tion pro­vides that every­one has the right to free­dom of con­science, re­li­gion, be­lief and opin­ion. It states fur­ther that re­li­gious ob­ser­vances may be con­ducted at state and state-aided in­sti­tu­tions, pro­vided that:

a) Those ob­ser­vances fol­low rules made by ap­pro­pri­ate au­thor­i­ties.

b) They are con­ducted on an eq­ui­table ba­sis.

c) At­ten­dance at them is free and vol­un­tary.

This pro­vi­sion obviously re­flects a bias in favour of re­li­gion in gen­eral, un­like the po­si­tion in the US where re­li­gious ex­er­cises, such as prayers, are not per­mit­ted in the schools. In the US, the idea of neu­tral­ity does not even per­mit one minute of si­lence “for med­i­ta­tion or vol­un­tary prayer”.

How sec­tion 15 is actually in­ter­preted and ap­plied in prac­tice is a great chal­lenge, par­tic­u­larly when there is a dom­i­nant re­li­gion, as is the po­si­tion in South Africa, with the dom­i­nant Chris­tian re­li­gion. So, for in­stance, manda­tory school prayers obviously con­sti­tute a vi­o­la­tion of re­li­gious free­dom, but even vol­un­tary prayers could con­sti­tute a vi­o­la­tion by putting pres­sure on chil­dren to par­tic­i­pate. Also, is it prac­ti­cal to al­low for re­li­gious ob­ser­vances for each and ev­ery re­li­gious faith, re­gard­less of how large or small their rep­re­sen­ta­tion in a par­tic­u­lar school?

It is there­fore the in­ter­pre­ta­tion, among other things, of the above pro­vi­sion of the con­sti­tu­tion, which is cen­tral to the re­cent land­mark judg­ment of Judge Willem van der Linde in the high court in Jo­han­nes­burg, in which he cat­e­gor­i­cally ruled against the pro­mo­tion of one re­li­gious de­nom­i­na­tion over any other at pub­lic schools by declar­ing that “nei­ther a school gov­ern­ing body nor a pub­lic school may law­fully hold that it subscribes to only a par­tic­u­lar re­li­gion to the ex­clu­sion of oth­ers”.

This sem­i­nal judg­ment was ini­ti­ated in May this year by the Or­gan­i­sa­tion for Re­li­gious Ed­u­ca­tion and Democ­racy (Ogod), which brought an ap­pli­ca­tion to the high court seek­ing an or­der rul­ing against hav­ing a dom­i­nant re­li­gion ob­served in pub­lic schools. It had pro­found reser­va­tions on the prac­tices of scrip­ture read­ing, singing of hymns in as­sem­bly and the dec­o­ra­tion of the walls of the school with Bi­ble verses.

It was ar­gued by the schools in ques­tion that as a re­sult of re­li­gious free­dom they were en­ti­tled to have an ethos or char­ac­ter, de­ter­mined by their gov­ern­ing bod­ies, based on the com­mu­nity that fed the schools with pupils. This re­flects a con­ser­va­tive or fun­da­men­tal­ist Chris­tian the­o­log­i­cal ap­proach, as ex­pressed by the Chris­tian View Net­work, which did not ap­prove of the rul­ing by Judge Van der Linde. How­ever, such an ap­proach must in­evitably lead to the dom­i­na­tion of the one re­li­gious de­nom­i­na­tion over oth­ers.

Ogod, re­ferred to above, and as re­ported by the ANA, brought the ap­pli­ca­tion against six Afrikaans State schools. These were the Laer­skool Rand­hart, Laer­skool Baan­breker, Laer­skool Gars­fontein, Ho­er­skool Lin­den, Ho­er­skool Oudt­shooren and Oudt­shooren Gim­na­sium.

The essence of its ar­gu­ment was that the re­li­gious prac­tices at these schools gave rise to the sup­pres­sion of the sci­en­tific teach­ing of evo­lu­tion and a dog­matic re­li­gious ethos that in ef­fect was a form of co­er­cion and a gross abuse of the rights of pupils.

In his mon­u­men­tal and land­mark judg­ment, Judge Van der Linde de­clared that pub­lic spa­ces were in­deed not “rar­efied” but pub­lic ones that needed to achieve “univer­sal and non-dis­crim­i­na­tory ac­cess to ed­u­ca­tion”. Re­fer­ring to sec­tion 15 of the con­sti­tu­tion set out above, he stated that pro­vi­sion for re­li­gious poli­cies and ob­ser­vances must be con­ducted on a free, vol­un­tary and eq­ui­table ba­sis. As a re­sult, he de­clared un­equiv­o­cally that “in this coun­try, our diversity is cel­e­brated, not tol­er­ated”.

He there­fore ques­tioned the ac­cep­tance by schools us­ing rules laid down by the gov­ern­ing body to hold out to be ex­clu­sively a sin­gle de­nom­i­na­tion, be it Chris­tian, Mus­lim, or even athe­ist.

What is clear from the judg­ment is that al­though re­li­gious ob­ser­vances and prac­tices in schools are per­mis­si­ble, pro­tect­ing chil­dren from co­er­cion is es­sen­tial. This al­lows broad-based re­li­gious ed­u­ca­tion, rather than dog­matic in­struc­tion that pro­motes one re­li­gion over an­other.

In the plu­ral­is­tic so­ci­ety that South Africa is, cul­tural and re­li­gious tol­er­ance is es­sen­tial for so­cial co­he­sion. This is nec­es­sary to pro­tect our cel­e­brated diversity. In this re­gard, Van der Linde’s judg­ment makes a fun­da­men­tally sound con­tri­bu­tion to our ju­rispru­dence, which has been widely wel­comed by most re­li­gious com­men­ta­tors, who in­clude lead­ers in the Hindu, Tamil, Mus­lim and Chris­tian faiths.

Pro­tect­ing chil­dren from co­er­cion is es­sen­tial

Ge­orge Devenish is an emer­i­tus pro­fes­sor at UKZN and one of the schol­ars who as­sisted in draft­ing the In­terim Con­sti­tu­tion in 1993

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