5. Substantive Rights: Freedom of Belief,
Religion & Opinion
• Freedom to hold views about religious and other moral issues and the freedom to practise
those beliefs – goes to the heart of what it means to be human in a modern democracy.
• Section 15(2) deals with the circumstances under which religious observance may be
conducted in state or state-aided institutions.
McLean article
• State must step back and let religious people flourish – McLean says when you scratch
beneath the surface this isn’t possible. When you limit a belief, it is done by people who
don’t really believe it is true
• Uses example of religion that existed long ago Moloch religion (sacrificing baby) – why
does this make us uncomfortable? We believe it is nonsensical
• So McLean says this shows that when we make these choices about where these
practises end and which we can regulate we do so because we believe this
religion/practise is true or acceptable
• Where does it end? Discrimination against gays, women etc. when do we decide that
certain practises are protected by a right?
Section 15(1): everyone has right to freedom of conscience, religion, belief and opinion
15(2): religious observances may be conducted at state or state-aided institutions provided
that:
(a) Follow rules made by appropriate authority
(b) Conducted on an equitable basis
(c) Attendance is free and voluntary
Importance of religion and its link to dignity
(Minister of Home Affairs v Fourie)
Court said C accommodates both secular and sacred, but religion is important to
•
many people – capacity to awaken concepts of self-worth and dignity which form the
cornerstone of human rights
Equally as important is the right not to believe, diversity –
respect for both secular and sacred
, Direct application
• Lawrence, Prince
Indirect application
• Strydom, Laerskool Randhart
Infringements?
• Constraint -> prohibiting
• Direct coercion -> forcing/compelling
• Indirect coercion -> favouring
S15 of the Constitution
Section 15(1)
Belief dimension:
• Both religious beliefs held by majority and beliefs of non-believers and minority faiths
must be fully respected.
• CC in Fourie: for many believers, their relationship with God is central to all their activities.
It concerns their capacity to relate in an intensely meaningful fashion to their sense of
themselves, their community and their universe.
• The rights in s15 signal the Constitution’s unique concern with the protection of diversity
in the realm of belief. Thus, it protects much more than religious views; it protects
‘freedom of conscience, religion, thought, belief and opinion’.
Action dimension:
• Section 15 does not only protect the right to believe or not to believe, but also the right to
act in accordance with those beliefs or non-beliefs. This right to act, said Sachs in
Christian Education, is one of the key ingredients of a person’s human dignity.
The scope and content of s15(1)
• It is far from clear what the CC’s understanding is of the exact scope and content of the
right to freedom of religion protected in s15(1). This is because a divided CC differed
sharply on the scope and content of the right when it first had to decide its meaning in
the case of S v Lawrence, S v Negal, S v Solberg.
Agreements
1. No establishment clause: The starting point in definition the scope and content which all
the judges agreed on was that our Constitution does not require a strict separation
between the state and religious bodies.
2
Religion & Opinion
• Freedom to hold views about religious and other moral issues and the freedom to practise
those beliefs – goes to the heart of what it means to be human in a modern democracy.
• Section 15(2) deals with the circumstances under which religious observance may be
conducted in state or state-aided institutions.
McLean article
• State must step back and let religious people flourish – McLean says when you scratch
beneath the surface this isn’t possible. When you limit a belief, it is done by people who
don’t really believe it is true
• Uses example of religion that existed long ago Moloch religion (sacrificing baby) – why
does this make us uncomfortable? We believe it is nonsensical
• So McLean says this shows that when we make these choices about where these
practises end and which we can regulate we do so because we believe this
religion/practise is true or acceptable
• Where does it end? Discrimination against gays, women etc. when do we decide that
certain practises are protected by a right?
Section 15(1): everyone has right to freedom of conscience, religion, belief and opinion
15(2): religious observances may be conducted at state or state-aided institutions provided
that:
(a) Follow rules made by appropriate authority
(b) Conducted on an equitable basis
(c) Attendance is free and voluntary
Importance of religion and its link to dignity
(Minister of Home Affairs v Fourie)
Court said C accommodates both secular and sacred, but religion is important to
•
many people – capacity to awaken concepts of self-worth and dignity which form the
cornerstone of human rights
Equally as important is the right not to believe, diversity –
respect for both secular and sacred
, Direct application
• Lawrence, Prince
Indirect application
• Strydom, Laerskool Randhart
Infringements?
• Constraint -> prohibiting
• Direct coercion -> forcing/compelling
• Indirect coercion -> favouring
S15 of the Constitution
Section 15(1)
Belief dimension:
• Both religious beliefs held by majority and beliefs of non-believers and minority faiths
must be fully respected.
• CC in Fourie: for many believers, their relationship with God is central to all their activities.
It concerns their capacity to relate in an intensely meaningful fashion to their sense of
themselves, their community and their universe.
• The rights in s15 signal the Constitution’s unique concern with the protection of diversity
in the realm of belief. Thus, it protects much more than religious views; it protects
‘freedom of conscience, religion, thought, belief and opinion’.
Action dimension:
• Section 15 does not only protect the right to believe or not to believe, but also the right to
act in accordance with those beliefs or non-beliefs. This right to act, said Sachs in
Christian Education, is one of the key ingredients of a person’s human dignity.
The scope and content of s15(1)
• It is far from clear what the CC’s understanding is of the exact scope and content of the
right to freedom of religion protected in s15(1). This is because a divided CC differed
sharply on the scope and content of the right when it first had to decide its meaning in
the case of S v Lawrence, S v Negal, S v Solberg.
Agreements
1. No establishment clause: The starting point in definition the scope and content which all
the judges agreed on was that our Constitution does not require a strict separation
between the state and religious bodies.
2
