For those of over-pious disposition, or who imagine that only their religious tradition will be ‘saved’, Jesus’ words about separating the sheep from the goats on Judgement Day (Matthew 25:31-46) must come as a shock. We are not saved primarily by our belief in the ‘right’ god (indeed in any deity), nor by our strict adherence to correct doctrine, or moral teaching, but by how we treat those who are marginalised. Theologies that speak of justice – Catholic Social Thought, the Protestant Social Gospel, Liberation, Black and Feminist theologies, and the justice traditions in all great faiths – bear witness to this as well, sometimes from the heart and sometimes from the prophetic margins of faith.
In South Africa these last twenty-five years the Constitutional Court has also stood out, a beacon on Johannesburg’s Constitution Hill, as a secular defence of values, often in the face of resistance from those who would deny the rights of the marginalised. For the most part the Court has resisted the temptation to easy solutions that benefit the powerful or to the popular judgments that pander to unreflective prejudices of majorities, but tried instead to seek the common good. In a sense the Constitution and Bill of Rights are our secular Sermon on the Mount, calling us citizens to reflect on the degree to which the law and our practice protects everyone and takes special note of the needs of the marginalised. It is not a text that favours anyone – it certainly does not give any religion special favour. What it does seek to do is protect those marginalised from unnecessary harm – and where it might disadvantage some individuals’ interests or beliefs it does this out of a desire for a greater good.
At its best, the Constitutional Court has delivered judgments that defend the rights of the poor and protects society as a whole from arbitrary rule and laws defending sectoral interests. The fact that it has aroused the anger of the ruling party and many groups (including the churches) is a measure perhaps of its even-handedness and effectiveness. Despite attempts to politically influence it, mainly through appointment procedures, it has managed to remain fairly neutral – and its popularity is perhaps a measure of its success.