Homophobia, private property and rights of admission – Oakfield Farm weddings

Screen Shot 2015-02-11 at 13.21.06Others have known about this for some time, I’m sure, but today was the first I’d heard of Oakfield Farm in Johannesburg, a wedding venue that would like to insist on only hosting heterosexual weddings due to the “religious convictions” of their shareholders.

They have been in trouble for this position since at least April 2014, when “the Commission for Gender Equality notified Oakfield Farm that it was investigating a complaint against it of unfair discrimination on the basis of sexual orientation.”

In the same article linked directly above, you can read that the chief executive of the South African Human Rights Commission, Kayum Ahmed, “said that service providers were not allowed to discriminate against gay and lesbian people because this is a violation of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act.”

Constitutional scholar Pierre de Vos agrees with this reading of the law, albeit with reference to a racial discrimination case, arguing that

section 9(4) must be read as placing an internal limitation on other rights such as the right to property and the right to freedom of association. This means the right to associate freely and the right to property is qualified by section 9(4) and these rights can only be exercised in conformity with the non-discrimination injunction contained in section 9(4) of the Bill of Rights.

Section 9.4 specifies that we can’t discriminate against others on various grounds, including race, sex, gender, sexual orientation, religion, belief or culture.

The key difference between the sort of discrimination you practice in refusing Scientologists access to your birthday party and the sort practiced by Oakfield farms is that they are offering a service to the public, whereas I am holding a private gathering. Once you offer a service to the public, you can’t discriminate on those specified grounds.

So it seems clear that what Oakfield do (or attempt to do) is (currently, and whether rightly or wrongly) illegal. A “right of admission reserved” sign has no legal standing when in competition with these non-discrimination laws.

But, and here’s where the trouble starts, that’s all a separate issue from whether the law, or the Constitution, should say other than what it does.

One thing one might want to argue is that it’s discriminatory against the religion in question to force them to host gay weddings (leaving aside the fact that it’s unlikely any gay folk would want to get married there, if that was the case).

These are tensions I’m not qualified to address in terms of the law – and it is a tension, because it might well be the case that there are more members of religion X (that doesn’t like gay marriage) than there are gay folk.

We don’t make laws via popularity contests, I know, but the point is that if the religious group is being discriminated against by being forced to host gay marriages, some argument is needed for why it’s them, rather than the prospective gay couple, who should be discriminated against.

One answer is that non-discrimination should be the default (and that’s certainly the position I’d take), but that begs my question, in that it seems plausible to describe the enforced-gay-weddings position as discriminatory against the religious. And this, in turn, means that gay folk are higher up the pecking order in some sense than religious folk.

There’s one way in which that ranking makes perfect sense, because you don’t (typically) choose your sexual orientation (or race), whereas you’re perfectly free to choose your religion. Is it as simple as that – in other words, that these forms of discrimination can be rank-ordered where necessary, but bundled together in law until that need arises?

A second sort of thing you might want to say in objection to the Constitution (as read here) is that – so long as everyone of whatever race, religion, sexual orientation etc. has equal access to facilities, any individual facility should be free to discriminate, and the market can discriminate in return, hopefully driving the bigots out of business.

To lay my cards very much on the table, I’d prefer the second option in theory. However, thanks to how easy it is to rig the game (or, perpetuate the rigging of the game) against people who have historically been subject to discrimination, this would in all likelihood end up perpetuating that discrimination – leaving us with the forced pragmatic (and morally sound) choice of enforcing non-discrimination.

(On a concluding note, in case any of my lawyer friends drop by, I don’t understand why S6 of the Civil Union Act passes muster on the reasoning of the de Vos piece linked above. Section 6 reads:

A marriage officer, other than a marriage officer referred to in section 5 [which refers to people who qualify as representatives of religions], may in writing inform the Minister that he or she objects on the ground of conscience, religion and belief to solemnising a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnise such civil union.

I was happy to register under the Civil Union Act precisely because I wanted to be able to marry heathens, including gay ones, but how is it that I should be allowed to choose not to marry gay couples?)

13 Replies to “Homophobia, private property and rights of admission – Oakfield Farm weddings”

  1. The only thing I’m not so sure about in this excellent piece is the idea that religion is a totally free choice. Faith seems to me to be an emotional “choice”, which isn’t that free. The idea that we are free to choose a religion is a very rational one.

    1. I agree that there are complications with religious “choice”, sure. But it’s more of a choice than the others, it seems to me – even if the impulse to find oneself in a religion, or the cause of such, isn’t fully chosen, there seems to still be plenty of room to leave the fold, or switch folds, etc.

  2. From a christian biblical point of view being a christian is not a choice, The father draws those he has chosen in a way that they accept the faith in christ and believe the precepts in the bible. So in a sense if what they believe is true they had no choice. They do have a choice of whether they live like what they are or not the same as many christian homosexual people live celibate lives because they believe their homosexuality is sinful and choose not to practice their homosexuality. The same as someone who feels predisposed to paedophilia resist the temptation to act on their temptation.

    1. Merely being a christian is a choice. If you were born in Japan, it would be likely that you were brought up in the Shinto religion. “Not a choice” – please. I suppose you believe being gay IS a choice.

      1. What I believe isn’t the point however being homosexual is not always a choice although sometimes it can be, there are genetic factors affecting brain chemistry that influence one to have certain sexual (and all sorts of other) leanings.

        There is evidence that our patterns of thinking can affect brain chemistry, and brain chemistry can affect our patterns of thinking, that’s why both psychology and psychiatry exist, psychologists attempt to correct the chemistry that results in behaviour by changing ones understanding of the consequences of the behaviour. Psychiatrists attempt to control the behaviour by controlling the balance of the chemicals in the brain resulting in a suppression of the thought patterns that lead to negative behaviour or an excitement of the thought patterns that lead to positive behaviour.

        The christian view is that this is all a result of living in a broken world which was caused by man following temptation in to self determination and becoming a god to himself. This is the single law that was set and breaking of law has consequences.The consequent brokenness of the world which is what the bible refers to as death, causes the brokenness in genetic patterns which are passed on and mutated. This is the physical result of the original sin. All people are thus broken, merely in different ways, and so no one is better than anyone else.

        The central teaching of the bible is that people are supposed to love God, and love one another but reject the sinfulness that results from that brokenness. In other words all people should accept one another in love but not condone or entertain the sinful behaviour that is a natural result of living in a broken decaying world.

        Despite sinful disposition ‘from conception’ man is told to reign in the evil desires and tendencies and by renewing of the mind practise self control. Clearly because of the imperfection nobody on earth achieves this perfectly but there is the ability of the human mind to overcome the temptation to do things we shouldn’t by reminding itself that certain behaviour is wrong. Some peoples brokenness is so bad that chemical help is needed to bring sufficient balance that it can also function in the sphere of self control.

        1. I realise you are simply trying to make your position clear, but please do not use this space for exegesis? And @peteblackbeard:disqus, m69 is speaking from a Biblical perspective – which neither you nor I think sound – so the discussion really ends there, as you don’t accept his premises. It’s pointless arguing that he’s wrong from a different set of assumptions, and it will likely only lead to misunderstanding and insult.

          1. Yes sorry, I did perhaps go a bit far here but since your blog post started with what a christian did, and referred to what one considers as a choice or not a choice and the resultant discrimination based on that, I did think it appropriate to present why the christian world view discriminates against certain behaviour. Despite @peteblackbeard:disqus ‘s presupposition of what I think, and your assumption of where I stand, it always pays to consider the opposite view i.e. stand in the shoes of the other side, to understand where they are coming from. That would make for a more balanced and honest view.

            1. I didn’t assume anything about where you stand – I said you speak from a Biblical worldview, which is something you disclosed. And no, it doesn’t always pay to consider the opposite view in every instance – in general, yes, but one cannot re-entertain the same thing countless times. And once entertained, the value of future engagement rapidly diminishes.

              You have your perspective, which differs from mine – and apparently from Pete’s – that doesn’t mean that your perspective isn’t understood, or that there’s any increased likelihood of dishonesty.

              This is an admittedly and overtly non-theistic space, but one that also doesn’t care for insulting theists – but it’s not a space for people to try to convert each other.

      2. The point i was making is that if something outside yourself builds insurmountable barriers to direct you, you have no choice in the path you follow. This is what the christian belief of predestination teaches that their God creates a path which leaves no choice in the destination but does leave choice in other things.

  3. Iirc from 2008 when I registered as an RMO, you can object but then you have to resign because it kind of defeats the purpose. At any rate I think you (you in general not you specific) may want to have a long conversation with yourself if you want to host, perform, sing at etc weddings for some couples, but not for others. Oh and I asked Oakfield if they would turn away Pagan or other non-Christian couples and they haven’t responded.

  4. People often bring up the choice aspect of homosexuality as if it’s relevant. I don’t think it’s relevant to either the ethical status of homosexuality or how it might rank if one needed to resolve conflicting rights.

    If someone were born with murderous rages we wouldn’t excuse his killings because he didn’t have a choice. I’m not sure where you stand on free will but I’d say there is no real free will to actually make choices, so someone born gay has no more choice in it than someone who, due to the environment they were raised in, grows up to be homophobic.

    Furthermore, I think putting stock in the lack of a choice to be gay is a tactical error. I think sexuality is far more fluid than most terminology allows for and, as far as the furry fandom goes, people that enter often become more bisexual or switch to being gay. Maybe that’s just because the fandom is less repressive of sexuality or perhaps it means that gay isn’t necessarily how you are born. What happens if it is later determined that being gay is a choice? Will you then say that because it turns out being gay is a choice, it’s actually okay to discriminate against them?

  5. I sense that what De Vos states in the above quote [based upon what the Concourt might have decided] is simply a matter of value preference. Non discrimination against gays is simply valued higher than the right to property, religion and association. And I say that because their is nothing explicitly in the constitution that says that section 9[4] – ie ‘no person may unfairly discriminate’ – ranks higher than section 15 [religion] or 18 [association] etc, etc. But he and the Concourt simply “find” it there. They pluck that higher ranking out of thin air. Because they want to. Just look at that quote again: It says section 9[4] “must be read”!? But that ‘must’ appears nowhere in the constitution!. It’s simply a progressive minded ‘reading into’ that is happening. It’s not law. It’s simply preference cloaked as law.

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