Chief Justice Mogoeng, religion and the law

In September of 2011, I was one of those to express concerns regarding Mogoeng Mogoeng’s suitability for the position of Chief Justice. At the time, I noted that “there is a distinct danger that he would be unable to separate his faith from his duties as a jurist”, and also remarked on how his appointment would occur in a context of apparent tolerance for homophobia on the part of the President himself, as well as in the appointment of someone like Jon Qwelane as ambassador to Uganda.

However, there has been no reason (that I’m aware of, at least) to fear that the worst has in fact come to pass. Morally conservative he may be, and also homophobic, but I’ve seen nothing to indicate that Mogoeng has been anything other than the loyal servant of the Constitution that he swore to be when appointed.

downloadThis doesn’t mean we shouldn’t remain wary, but as my erstwhile colleague Stephen Grootes recently argued in the Daily Maverick, it’s possible that his oath matters enough to him that he’ll uphold it even when doing so means defending the rights of gay South Africans, and even when this would conflict with his religious convictions. In other words, it’s possible that he can and does separate personal beliefs from public responsibilities.

Of course I would nevertheless prefer a Chief Justice who held views similar to mine on crucial issues such as social equality and the non-existence of gods, just in case those views ended up polluting his judgements. We’d all like for people in power to hold views similar to ours – if not, I’d expect that we’d ourselves regret holding the views that we do.

But in a constitutional democracy, he’s allowed to hold the views he does, and me the ones I do – and so long as we all do our jobs according to the conditions stipulated by those jobs, one might think that there’s little room for concern.

This is, in brief, why I wasn’t as animated by Mogoeng’s recent remarks about the role of religion in law as others (for example Richard Poplak) were. For one, the remarks were made at a conference on law and religion in South Africa, rather than (for example) in an address to judges or a group of law students. The focus was on religion’s role in law, he is a lay pastor, and I’m perfectly happy with the notion that if he could rewrite the Constitution, that he’d then want to put religion at the forefront of it. If you want to read the speech, here’s the pdf.

But fortunately, he can’t rewrite the Constitution, and our highest courts have – up till now, at least – remained resolutely independent in the face of political pressures. In short, my view was that if we know that a deeply convicted religious judge is giving a talk on religion in the law, we can’t be surprised if he says that he wants to put more God in his gavel.

Then, I was also reassured by aspects of his speech that are omitted from the criticisms I’ve seen, for example lines like:

  • religion is also open to abuse. As matter of fact, many have distorted religion and used it as the basis for the oppression of others
  • Laws must be enacted with the full realization that religion is a matter of conscience and conviction. It cannot be imposed or legislated into the hearts and minds of the people
  • In a democratic society comprising different religions or shades of the same religion, it may be necessary to impose constitutionally justifiable limitations on freedom of religion in order to reconcile the interests of the various groups

My reading of the speech is that it argues that there are certain moral goods that – to his mind, at least – cut across various religious and non-religious views (minimising corruption, encouraging tolerance of diverse viewpoints), but that he also finds well-expressed in his Christian worldview. And because he thinks of those goods as emerging from a Biblical worldview, he thinks we might find it worthwhile to mine that Biblical worldview for the proper expression of these and other moral goods.

He’s wrong, in my view, and clearly so – wrong that those virtues emerge from religion, and wrong that religion is the most effective way of maintaining or encouraging those virtues. Nevertheless, he’s free to believe that, and so long as his judgements are not prejudicial to the non-religious or those who subscribe to different faiths, his beliefs should not be a bar to his holding the office he does.

It’s once we step outside of the context of the speech he gave at this conference on religion and the law that something more worrying becomes apparent. Once the speech had caused the controversy it did, Mogoeng decided that some clarificatory remarks were in order. If those clarificatory remarks had been something along the lines of “the speech expressed my private views, and were delivered for the purposes of addressing a particular topic at a conference. I remain committed to upholding the rights to freedom of religion as expressed in our Constitution”, we’d have little to grumble about.

Unfortunately, that’s not what he said. He called on religious groups to lobby before laws were passed, in order that their beliefs could be better expressed in law. He said that getting divorced was too easy, and that adultery leads to tensions, and these tensions can lead to deaths. He said that Africa needed moral regeneration, and that “promiscuous fornication” was one of the ways in which we are morally degenerate.

In other words, he doubled-down on expressing a particular version of morality, premised in religion, as being the solution to Africa’s moral ills. So, the second speech did nothing to alleviate any concerns that the first speech might have raised in terms of the extent to which religion might shape his judgements.

It is because he didn’t take the opportunity to alleviate those concerns – in fact, he ended up using the opportunity to either amplify those concerns, or to indicate that he doesn’t even properly understand them – that we can fear that he lacks good judgment when it comes to the intersection of law and religion.

It is Mogoeng’s failure to dampen our concerns that troubles me most, in that they indicate that he doesn’t understand why we’re concerned at all. Another person who seems oblivious to any potential concerns is Mondli Makhanya, who wrote an opinion piece on Mogoeng for the City Press this past weekend.

If you read his piece, you’ll notice that I say a few similar things to him in the text above, at least in terms of being inclined to a fairly charitable reading of Mogoeng’s first speech. It is in Makhanya’s concluding paragraphs that things take a disturbing turn:

The problem here is not Mogoeng and his beliefs. It is the anti-religion fundamentalism that is creeping into our society. This fundamentalism seeks to portray religion as something backward, superstitious and dangerous, akin to belief in witchcraft.

The adherents of this fundamentalism ignore the fact that the majority of South Africans practise some or other religion and spend at least an hour of their Fridays, Saturdays and Sundays in places of worship.

These South Africans tolerate each other’s faiths and appreciate the fact that there are many others who believe in nothing. They are actually much more tolerant than the anti-religion fundamentalists.

It is these anti-religion zealots who should concern us more than Mogoeng.

Framing everyone who has concerns about maintaining the secular (which doesn’t mean anti-religion, but rather, that no variety of religious belief – including non-religion – trumps another) character of our law as an “anti-religion zealot” seems a rather stark expression of zealotry itself.

Many of us are not anti-religion in general, but rather quite specifically anti the idea that religion can be allowed to intrude on aspects of everyone’s life, without regard for whether they welcome that intrusion or not. Makhanya is trading on a straw man version of the secular here, just as I would be if I were to make the (unkind, and untrue) observation that all Catholics are complicit in child abuse.

It’s not an anti-religion “fundamentalism” that motivates my concerns – it’s a commitment to keeping religion in its proper place. As I’ve argued in the past, it’s about “leaving your (metaphysical) beliefs at home when you go to work, especially in the public sector”.

I won’t complain about institutions of faith being fairly routinely awarded public benefit organisation status, thereby achieving tax-exemption, because I think that the state should be blind to the metaphysical beliefs that underpin what can (broadly) be thought of as in the public benefit. Likewise, I would expect the state to grant the NPO I’m involved with, the Free Society Institute, the same status on submission of the required documentation.

Then, us “fundamentalists” need in no way ignore or disrespect the fact that the majority of South Africans are churchgoers. They are welcome to be, so long as it’s not in church that laws are made. (Makhanya might want to consider, also, that it’s not in church where morals seem to be made either.)

And no, we don’t need to (and usually, at least in my circles, don’t) liken religion to “witchcraft” to support our argument that religion should stay out of the law. Our argument is supported by founding principles of the Constitution, which involve respecting differences of belief such as these. The best way of entrenching that respect is to ensure that the law does not choose sides in matters of conscience – and that means keeping the law secular.

Besides the hyperbole of Makhanya’s piece, and the convolutions of logic that characterise especially the latter half, I’d like to raise one final issue: keeping the law and the Constitution secular doesn’t only protect us “zealots” and our “dogma” – it protects the Christians like Mogoeng, and Makhanya too.

Because even though it’s likely, there’s no guarantee that Christianity will always be the dominant religion in South Africa. And if you argue for more religion in our laws, you don’t get to complain if one day, those laws end up being deployed or premised in the service of a religion you’re not too fond of.

A secular state, and secular courts, are in all of our interests, including those of you who are religious.

  • Finally, the outspoken secularists are promoting pluralism and actual secularism. Happy to see some sanity coming from this camp at last. Thanks Jacques for an engaging blog.