We the people of South Africa

We hear a lot about the U. S. Constitution, and it’s easy to forget that other countries have their own foundational documents.

How do these other constitutions treat religious freedom and church-state separation?

Let’s take a look! For each post in this new series, I’ll discuss very briefly the text of other countries’ constitutions (or related documents) to see what they have to say about religious matters.

Without further ado, then, let’s look at the South African constitution. I find this a fascinating example, not simply because I’m South African myself, but because South Africa’s constitution is so new (it was ratified in 1996), and follows a long and horrific period of flagrant human rights abuses.

Discussion of religion in the South African constitution is contained in its Bill of Rights. Here are the relevant passages:

The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

A pretty exhaustive list (or at least it seems that way today!) Next:

Religious observances may be conducted at state or state-aided institutions, provided that ­those observances follow rules made by the appropriate public authorities; they are conducted on an equitable basis; and attendance at them is free and voluntary.

The first two lines of this quote are a little disturbing, I must say – state institutions can conduct religious observances provided they follow rules that the government itself has set up? OK…  At least the last two lines are better: no compulsory attendance at religious observances (perhaps South Africa’s Chief Justice ought to reread his own constitution).

Immediately following the previous passage is the following:

This section does not prevent legislation recognising ­marriages concluded under any tradition, or a system of religious, personal or family law; or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.

This is quite a bold statement. It seems to be saying that the government is open to recognizing any system of marriage that a religious (or other) tradition wishes to conduct. That’s pretty progressive! The document is, however, careful to make it clear that

Recognition in terms of [the above paragraph] must be consistent with this section and the other provisions of the Constitution.

Any marriage is OK, then, unless it threatens another right enshrined in the constitution. Fair enough, I guess.

Next up (emphasis mine):

Subsection (1)

Everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.

The right in subsection (1) does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

This seems to set up pretty reasonable limits on speech against religious belief: such speech is presumably tolerated unless it incites harm.

The last words on religion in the Bill of Rights are as follows:

Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community to enjoy their culture, practise their religion and use their language; and to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

Sounds good.

The only other mention of religion in the South African constitution is in the description of the clumsily named Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. This seems to be one of those institutions that has come about as a reaction to the abuses practiced under apartheid.

Here’s the relevant text:

The primary objects of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities are to promote respect for the rights of cultural, religious and linguistic communities; to promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association; and to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa.

Seems pretty reasonable, and probably necessary considering South Africa’s great cultural diversity.

Well, that’s it. Note that there is no explicit separation of church and state in the constitution, and that the state is actually permitted to conduct religious “observances” in some circumstances.

If you have a country whose constitution you’d like me to look at next, let me know.


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