Multiculturalism, religion and equality

• Jurisdiction: South Africa
• Citation: 2001 Acta Juridica 104
• Author: Denise Meyerson
• Date: 23 May 2019
• Pages: 104-118
• Published date: 23 May 2019

Multiculturalism, religion and equality

DENISE MEYERSON*

Macquarie University

I THE CHANGING FACE OF RESPECT FOR RELIGION

Traditionally, religion and religious differences are seen as a private

matter and the demand for religious freedom takes the form of a

demand that the state should stay out of the religious realm. The

kind of religious freedom at issue here is the kind sought by nineteenth

century German Jews who wished to be German in the street, Jewish

at home.

1

They asked simply that their religious beliefs and practices

should not be a matter of public concern – that the state should not

distribute benefits and burdens on the basis of religion. By contrast, a

currently more popular way of conceiving of respect for religion is

connected with the values of religious diversity and multiculturalism.

Respect for religion requires, on this newer, multicultural view, not a

secular state but a state which respects religious pluralism; not a state

which is blind to differences of religion but a state sensitive to these

differences. On the multicultural view, respect for religion functions

not as a shield against sectarian laws – not as a demand that the state

should refrain from deliberate interference in the religious realm – but

rather as a sword, as a positive right that the state should actively

facilitate and publicly accommodate the free exercise of religion.

My interest in this chapter is in the troubling conflicts that can arise

between religion and other people’s rights, especially the right to

equality, when respect for religion is conceived in the multicultural

way, and in the consequent difficulties of attempting to balance the

competing interests in the South African constitutional context. Of

course, conflicts between religion and other people’s rights can also

occur on the traditional conception of religious freedom and when

they do occur they are not necessarily easy to resolve. Some cases

are easier than others: in the easier cases it is relatively obvious that

the practices illegitimately infringe the rights of others and are there-

fore not private practices or practices in respect of which it can be

demanded that the state should take no interest. Consider, for instance,

the case of Christian Scientists whose religious text – Mary Baker

Eddy’s Science and Health – forbids them from availing themselves of

medicine, doctors or hospitals. When they fall ill they rely on a so-

called ‘Science Practitioner’ whose job it is to heal them through

prayer. As a result of these mind-over-matter practices a number of

* BA (Witwatersrand) LLB (Cape Town) B Phil (Oxon) D Phil (Oxon); Senior Lecturer,

Division of Law, Macquarie University.

1

M Walzer ‘The politics of difference’ (1998) 11 Ratio Iuris 165 at 170.

104

2001 Acta Juridica 104

© Juta and Company (Pty) Ltd