Advancing the Protection of the Right to Freedom of Religion in South Africa

Résumé

Since the inception of South Africa's democracy, the Constitutional Court has been confronted with only a few challenges regarding the protection of the right to freedom of religion (and the same applies to the other courts). Although part of the reason for the sparse jurisprudence on the protection of the right to freedom of religion is South Africa's relatively young democracy when compared to many other democracies around the world, an ideal opportunity is presented for contributing towards the laying of a sturdy foundation conducive to the advancement of inclusivity pertaining to religious freedoms. Consequently, this article critically explores aspects related to what is presented as essential underpinnings to the debate, namely the importance of the right to freedom of religion (and implied in this, non-religious belief as well), the presence of subjective moral convictions (or beliefs) in the practising of law and the accompanying risks related to unnecessary dominance in the practising of law, tolerance, the pretext of neutrality and modes of judicial reasoning. Following on this, and as an extension of the aforementioned, the Constitutional Court's approach in Prince v President of the Cape Law Society (hereafter Prince) is investigated. Accompanying all of the above is the countering of the strong pull in many democracies towards the marginalisation of religion regarding inclusion in the public sphere and that which is deemed to be rational; something that South Africa's democracy should not be perceived as being immune to.

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