Constitutional matters [trends & prospects]: exploring issues related to the constitution, democracy & the South African Jewish community
In the third of our three inaugural articles, Adv. Anton Katz looks at some inherent tensions between certain Constitutional rights and the implications of these for the Jewish community.
IN 2007 the Nederduitse Gereformeerde Gemeente (NG Kerk) in Moreleta Park, Pretoria fired a Mr Strydom, the congregation’s music teacher. The reason for his dismissal was his sexual orientation and that he was in a same-sex relationship. According to the prescripts of the church, marriage can only exist between one man and one woman. For the church, persons of homosexual orientation must be celibate and cannot be involved in a homosexual relationship. This would amount to a cardinal sin in view of the church’s teachings.
Mr Strydom challenged the church’s decision to fire him in the Equality Court in Pretoria. His argument was that the decision infringed his constitutional right to equality and to not be discriminated against on the grounds of sexual orientation. The church took the view that to have Mr Strydom work at the church was an affront to their right to freedom of religion.
" ... recent events in the Jewish community, highlight tensions in the Constitution ..."
Because Mr Strydom was not seen by the Court to be a religious or spiritual leader, but only a contractor who worked there on an occasional basis to teach music, the Court ultimately found in his favour. According to the Court’s judgment, the “impact on religious freedom of [keeping Mr Strydom there] is minimal”. In other words, the Court judged that in this particular case Mr Strydom’s right to equality and to not be discriminated against on the grounds of his sexual orientation outweighed the church’s claim that its religious freedom had been impinged upon.
Jewish communal leaders – and some members of the Jewish community – have been quick to label these moves as mortal threats to the relationship between the states, and to the local Jewish community. The evidence suggests otherwise.
exploring the concerns of the south african jewish community
In the first of our three inaugural articles, Adina Roth explores the concept of Machloket l’shem shamayim and looks at what our textual tradition might suggest about the possibility of deepening debate and conversation in the South African Jewish community.
Every argument that is for the sake of heaven is destined to endure. And every argument that is not for the sake of heaven is not destined to endure. What is an example of argument for the sake of heaven? The arguments of Hillel and Shammai. And not for the sake of heaven? Korach and his congregation (Avot, 5:17).
Machloket l’shem shamayim, an argument for the sake of heaven, is an invisible yardstick put forth to distinguish between arguments considered worthy, and those seen as unworthy. What place could the concept of machloket l’shem shamayim or – argumentation for the sake of heaven – have in the South African Jewish community? Can this concept help establish the boundaries as well as the possibilities for acceptable discourse and debate in our community?
While the right to freedom of speech, as enshrined in the South African Constitution, ensures that anyone can raise an argument in our community, the way in which arguments are received, explored and discussed within the community is influenced by communal culture and norms, social pressures and consensus; a host of factors far more complicated than the right to freedom of speech. No one wants to be ostracised for exercising their inalienable right to free speech. That said, intuitively we might understand that some arguments are edifying and do much to advance the ethics of a community or culture while others can be destructive. The boundaries of what is and what is not a worthy – or edifying – argument, however, can become subjective. When it comes to communal engagement around issues of contention, we are in the realm of sociology as much as law; subjective narrative or poetics as much as absolutes. The question becomes, is it possible to share the value of macholket l’shem shamayim across the community so that a space of constructive, rigorous and more forthright dialogue can be opened up?