So I’ve been taking a crash course in the South African constitution, specifically as it pertains to the freedom of religion and even more specifically, freedom from religion in public schools (and other public educational institutions, including public tertiary education). This was precipitated by the discussion on the Afrikaans sub-forum here in which the suggestion was made that because separation of church and state is not explicitly stated in the Constitution, it renders the situation with religious dominance in public schools (where one religion is declared as “more right” than other religions or no religion) a difficult one to solve.
Upon re-reading the Constitution, I found that I disagreed and instead of derailing the previous thread further, I thought I’d post a new thread on this topic.
This is quoted directly from the Constitution (Section fifteen):
[b]15. Freedom of religion, belief and opinion[/b]
Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
Religious observances may be conducted at state or state-aided institutions, provided that
a. those observances follow rules made by the appropriate public authorities;
b. they are conducted on an equitable basis; and
c. attendance at them is free and voluntary.
a. This section does not prevent legislation recognising
i. marriages concluded under any tradition, or a system of religious, personal or family law; or
ii. systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
b. Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.
Further, the constitution clearly sets out not only the powers and competencies of various organs of state, but it also describes the process by which public officials are to be appointed. My argument is therefore that we do not strictly speaking need an ‘establishment clause’. Further, as to the issue of public educational institutions declaring a “dominant” religion with disregard of subsections 15.2b and 15.2c, one should be able to challenge the constitutionality of their policy based on that disregard?
An argument can even be made that subsection 15.2c is an extremely fragile thing, since coercion can be direct or indirect (similar to the arguments made by George Claassen way back when).
My question, therefore, is dual:
1.) Do we need an explicit 'establishment" separation of state and church clause?
2.) Given section 15.2 and applying it specifically on public educational facilities, is there a justification for the practice of declaring a “dominant” religion and “enforcing” only said dominant religion? Can such a practice be said to fulfill the terms in section 15.2.b and c?
My answers to both these questions are “no”, although I’ll add to my “no” on #1 that such a clause would certainly make my life easier, so I’m not against it per se.
I’m interested in what other thinkers here think on this matter and what, if anything, can possibly be done in this regard. Should “we” (those of us who are uncomfortable with public educational institutions declaring a “dominant” religion) be agitating for an amendment of the Constitution to include separation of church and state, or what? What can be done about this ridiculous situation?
I mean, when it comes to a place where someone has to publically resign an argument due to threats and intimidation (also classifiable as terrorism?) rather than conviction (see: George Claassen), does this not indicate a fundamental and extremely worrisome problem?
So what can be done to address this problem?