Gaum v NGK (March 2019)


11 March 2019

ChristianView Network condemns the outrageous judgment of judge Joseph Raulinga of the North Gauteng High Court setting aside the Dutch Reformed Church (NGK) policy prohibiting so-called ‘same-sex marriages’ and persons in same-sex relationships .  The policy of prohibiting same-sex sexual relations has always been and always will be the policy of every genuine Christian church – and those who support homosexual practice are not recognised as genuine Christians (1 Corinthians 6 ).   The Heads of Argument brought by the applicants, Gaum et al, argue firstly procedural irregularities on behalf of the NGK and secondly a claim that the overturning of the NGK policy is required by the Bill of Rights .    

Our response was covered by: ENCA news, Jacaranda FM , Die Burger (paywall)

The judgment accepted both of these arguments and made a cost order against the NGK.  The Pretoria court found that the NGK 2016 decision had not followed their own rules of church order in that the they had failed to set aside or amend their previous decision in 2015 (para 60).  This is a technical procedural error and if this is all the court had said, then the NGK could just learn a lesson and pass the same decision again following this procedure.  All organisations have to follow their own rules.  Biblically, one is not supposed to take genuine believers or churches to court (1 Corinthians 6), but if someone does the court does have jurisdiction to make a ruling on a procedural matter. 

Nevertheless, the judgment goes on to rule on the substantive objection to the prohibition of same-sex marriage based on the ‘sexual orientation clause’ in the Bill of Rights(para 62-92).  While buried in dense legal jargon, their core arguments can be simplified to plain language:

  1. The 2016 NGK decision discriminated against Gaum [Answer: We don’t debate this]
  • It is a specified ground in S9 of the Bill of Rights [Answer: Yes it is a specified ground, which is why I motivated the 1996 Constitutional Assembly to remove it and again the 2006 legislature as an alternative to recognising ‘same-sex marriage’.  Now the warnings have proven correct.  Nevertheless, a narrow interpretation of the words, which was the intent of the framers of the Bill of Rights would not lead it to be deemed unfair.]
  • The discrimination is assumed unfair unless it is established that is unfair (S9(5) of the Bill of rights.  [Answer: We don’t debate this]
  • The NGK had failed to give reasons why such discrimination was fair (Para 78).  [Answer: This should be blindingly obvious, but any other religious organisation could and should give such reasons in future. For example: A) Homosexuals are free to stop sexual relations and marry someone of the opposite sex. B) So-called ‘Same-sex marriage’ is a legal fiction invented in 2005, which 9/10 South Africans don’t accept.  It was invented specifically to overcome the social category of ‘marriage’ as a defence against ‘sexual immorality’. C) Churches equally (should) prohibit heterosexual fornicators and adulterers in their pulpits which is not unfair discrimination.  D) Muslims may prohibit Hindus from becoming Imams without being guilty of ‘unfair discrimination’ on grounds of religion.] 
  • The court not see what ‘worthy and important society goal’ was promoted by the discrimination (para 79).  [Answer:

A) For example: Marriage is the boundary between legitimate and illegitimate sexual behaviour.  Numerous emotional, family, social, health and spiritual harms result from failure to respect this boundary. There are uncountable benefits that flow from a healthy marriage to spouses and children, which do not come outside of marriage].

B) All this is very obvious to anyone of any culture who is not blinded by an ideological system that excludes evidence that doesn’t fit.]   

C) The court conceded in para 22 their difficulty of evaluating religious beliefs from the outside. [They maybe forgot their momentary humility].

D) The Bible teaches that men who have sex with men will not go to heaven and that sexually immoral people must be expelled from the church (1 Corinthians 6).

  • The impact on Gaum was significant and included:
    • Impairing his dignity of person (Para 82).  [Answer: The court muddles dignity of person with dignity of action.  The church does not impair Gaum’s dignity of person, as it still views him as a human being created in the image of God.  Dignity is impaired through sexual immorality (Romans 1) including homosexual practice.  The court degrades dignity by undermining the institution of marriage.
    • Restricting Gaum from celebrating a marriage without moving to another denomination (Para 82).  [Answer: Firstly, Gaum is free to marry a woman in the NGK. Secondly, while we don’t condone ‘same-sex marriage’ in any way, he actually could leave the NGK and celebrate such union in another denomination without them.  The 2015 NGK decision which the court approved of actually still restricts Gaum to only congregations within the NGK that support this – and only recognises it as a ‘civil union’ and not a ‘marriage’.  The court thus approves arbitrarily of the 2015 compromise and disapproves of the 2016 one.  Neither conforms to the beliefs of the judges.  But who are they to decide for the church?].
    • Preventing Gaum from the full rights and freedoms of the church including the right to be a church minister (Para 80).  [Answer: Firstly, the so-called ‘rights and freedoms of the church’ are privileges for Christians who conform to the beliefs of the church only and the privilege of eldership is not a but restricted to those who qualify (1 Timothy 3)]
  • The NGK was inconsistent in:
    • Allowing homosexuals to train for the ministry but not practice the profession. [Answer: Wrong. Actually anyone, even a Muslim or Atheist is free to study Christian theology at university.  Admission is decided by the universities not the church. But this does not guarantee admission as a church elder, for which there are biblical requirements (1 Timothy 3)]
    • Allowing homosexuals to be members of a church but not ministers in the church.  [Answer: Firstly, we don’t believe the NGK should allow homosexuals to be members of the church (1 Corinthians 6).  Secondly, being a member of a church doesn’t automatically entitle you to be an elder (1 Timothy 3).  Thirdly, most political decisions including church politics decisions have a degree of inconsistency as they move incrementally.  The judges are okay with inconsistency as long is the direction is moving in the direction they want, but they are unhappy when it moves the other way.
  • The NGK was divided in its interpretation of the Bible on this issue [para 75].  [Answer: Actually not.  The Bible is pretty simple on this.  The problem is not the interpretation of the Bible, but respect for the Bible.  A substantial proportion of the clergy and particularly the theology lecturers at Tukkies and Stellenbosch don’t respect the authority of the Bible].

The court dismisses the arguments of:

  • The principle of balancing rights including the right to religious freedom (Para 78). i.e. they expect ‘sexual orientation’ to be a ‘trump right’ over ‘religious freedom’. 
  • The doctrine of entanglement of the state in the affairs of the church, with precedents going back before the 1993 constitution (Para 28).
  • Church autonomy
  • International precedent.
  • Voluntary associations must require members to submit to their own rules (Para 26)

[Comment: This is indicates these power abusing lawyers, if not stopped are likely to further attempt to trample on religious and other voluntary association freedoms]

Some of the above arguments are relevant to other denominations.  Others not.  If there is another case against another church, they can put forward a better argument.  Nevertheless, if this is accepted it will put other churches in a weaker position – and on numerous issues – not just homosexuality.

The judgment fundamentally misunderstands the purpose of the Bill of Rights in general and the Equality clause in particular.  In paragraph 81 it quotes another judgment referring to the constitutional ‘goal’ of Equality, and argues the NGK churches creed is in conflict with this.  Nevertheless, the Bill of Rights it not a set of goals that empower the judiciary to proactively socially engineer the law to create Equality of ‘outcomes’ they consider desirable.  It recognises ‘rights’ and ‘freedoms’ in which there will be a diversity of ‘outcomes’ in different associations and as individuals work in a free society.  The Equality clause says measures ‘may’ be taken to rectify discrimination which is an apparent reference to affirmative action.

The tone of the ruling is embedded with astounding arrogance.  They believe they have “…more chance at judicial wisdom, if not Solomonic wisdom, necessary for this complex matter…’ (Para 40).  Solomonic alluding to Solomon in the Bible who wrote the book of Proverbs which starts with the theme ‘The fear of God is the beginning of knowledge, but fools despise wisdom…’ (Proverbs 1:7).  Commenting on the submissions made on behalf of the ‘Alliance Defending the Autonomy of Churches in South Africa’, the court prefaces “…we find it pragmatic to entertain the argument of the admitted amicus’.  In other words, they don’t even respect the argument for religious freedom, but simply ‘entertain’ it for pragmatic reasons. 

Thankfully the court did dismiss the audacious, irrelevant and legally incompetent submissions of the Commission on Gender Equality (CGE) seeking to have the conscience clause in the Civil Union Act expunged.  Nevertheless, this sets a warning the CGE is hijacked by sexual revolutionaries.

The Pretoria High Court decision, then threatens all religious freedom in South Africa to make their own policies and puts them in the position of having to choose between obeying the state or their own conscience.  The Constitutional Court has already ruled against this.   Likewise the 1998 Constitutional Court judgment decriminalising sodomy, also said  “those persons who for reasons of religious or other belief disagree with or condemn homosexual conduct are free to hold and articulate such beliefs” .   It is absurd for the court to expect a church to allow teachers and ceremonies, which its policies explicitly and lawfully teach against.   The North Gauteng High Court thus appears to be just bullying the NGK in the hope they will not appeal.  The NGK have 15 days to decide to appeal.  We hope they do.  But even if they don’t, other churches can apply to have the judgement rescinded, but this must be done soon afterwards.  Or otherwise we can wait defensively for the next attack to come.

The imaginary concept of ‘same-sex marriage’ was only invented by the Constitutional Court in 2005.  Polls by the Human Sciences Research Council show that at least nine out of ten South Africans still oppose so-called ‘same-sex marriage’, with 99 out of 100 opposing at the time of the Concourt decision .  Part of this elite out of touch with South African society are attempting to abuse the judiciary to try to impose this imaginary idea on the rest of South Africa including trampling on the religious freedom of the church.  To quote American Supreme Court Justice Scalia commenting on that courts 2015 recognition of so-called ‘same-sex marriage’ “I write separately to call attention to this courts threat to American democracy”

The reported decision is not only a threat to religious freedom, but adds to the destabilisation of the South African Constitutional order – already under immense strain.  Such judges who are abusing their powers to advance a personal ideological agenda, not found in the Bill of Rights, and attempting to make law bypassing the legislature, need to be removed from the judiciary.   Hopefully such decision will be overturned on appeal or rescinded. 

Nevertheless, even if not, the Christian church is not going to simply accept the demand to accommodate ‘same-sex marriage’ under any circumstances – any church that does is a false church and any pastor who abides by it is a false pastor.   A true pastor would rather go to jail and have the church property confiscated rather than accept homosexual practice and the myth of so-called ‘same-sex marriage’.