Ruling on religious tolerance at schools

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