The Dutch Reformed Church has been violating a court order on gay marriage for the past four years, according to a prominent lawyer.

The church’s decision to leave the matter in the hands of individual congregations does not go nearly far enough to comply with the court order, said Advocate Jeremy Gauntlett SC, in a legal opinion.

In 2019 Gauntlett acted on behalf of 12 members in a case in which the court reprimanded the church for its discrimination against gay members, notes a City Press report.

His legal opinion is contained in an open letter to the General Synod (GS) of the church which begins on 15 October in Boksburg.

The open letter was signed by 11 of the 12 litigants at the time.

Any congregation of the church that is taken to court by a gay member runs the risk of being found guilty of disregarding this 2019 court order which tells the church to fully recognise gay relationships, Gauntlett claims. 

The church said after the court order that congregations can decide for themselves whether they want to confirm gay couples in marriage or whether they want to appoint gay ministers.

At the time, the judges of the Gauteng High Court (Pretoria) ruled unanimously in favour of the litigants.

The court found that admitting gay members to the church but then not allowing them to participate in customs such as a civil union or the holding of church office is discriminatory.

The GS also decided in 2019 that the church should create a general formula for the confirmation of civil unions between gay members, but this decision was set aside last year by the General Synodal Moderamen (GSM).

Gauntlett warns in his legal opinion that the GSM did not follow the proper procedures to overturn the GS’ decision.

A GSM statement read: ‘The truth is that the GS did not take a principled decision in 2019 in favour of or against same-sex relationships.'

Gauntlett said the ‘alleged uncertainty’ between principle and process decisions ‘was invented by the GSM’ and ‘itself is inconsistent with the clear terms of the court ruling’.

According to City Press, Gauntlett said the church’s acceptance of the 2019 ruling by not appealing against it ‘means that the GS, the GSM or any congregation or official of the church cannot take a position that does not fully recognise same-sex relationships between its members and ministers of the DR church’. 

The litigants who signed the letter said it appears from the executive board’s answers to their questions that the GSM ‘still hesitates to admit unequivocally that the GS in 2019 accepted same-sex comm itments in principle by allowing ministers to confirm such commitments’.

The litigants said they hope that the delegates will take Gauntlett’s legal opinion into account when making decisions at the synod meeting in Boksburg.

Full City Press report