Court to ensure that he be protected in his right to regard his marriage as sacramental,[1] to belong to a religious community that celebrates its marriages according to its own doctrinal tenets,[2] and to be free to express his views in an appropriate manner both in public and in Court.[3] Further than that the Court could not be expected to go.
[94]In the open and democratic society contemplated by the Constitution there must be mutually respectful co-existence between the secular and the sacred. The function of the Court is to recognise the sphere which each inhabits, not to force the one into the sphere of the other. Provided there is no prejudice to the fundamental rights of any person or group, the law will legitimately acknowledge a diversity of strongly-held opinions on matters of great public controversy. I stress the qualification that there must be no prejudice to basic rights. Majoritarian opinion can often be harsh to minorities that exist outside the mainstream.[4] It is precisely the function of the Constitution and the law to step in and counteract rather than reinforce unfair discrimination against a minority. The test, whether majoritarian or minoritarian
- ↑ See section 15 of the Constitution.
- ↑ See section 31(1) of the Constitution.
- ↑ See section 16 of the Constitution.
- ↑ See Hoffmann v South African Airways 2001 (1) SA 1 (CC); 2000 (11) BCLR 1211 (CC) where this Court ordered that the conduct of SA Airways in not employing the applicant as a steward because of his HIV positive status amounted to unfair discrimination. Ngcobo J said: “People living with HIV constitute a minority. Society has responded to their plight with intense prejudice. They have been subjected to systematic disadvantage and discrimination.” (Footnotes omitted.) At para 28. As the US Supreme Court has pointed out in the context of religious speech, the support of the great majority for a policy does not lessen the offence to or isolation of the objectors; at best it narrows their number, at worst it increases their sense of isolation and affront. See Lee v Weisman 505 US 577 (1992) at 594. Quoted with approval in Santa Fe Independent School District v Doe 530 US 290 (2000) at 301–2.
