The Law Society appears to think that Catholic priests are legally required to solemnise the remarriage of divorced people. And that Baptist pastors must preside over the union of athiests. Or has it got something very wrong?

To my shame, I didn't put in a submission on Louisa Wall's Marriage (Definition of Marriage) Amendment Bill. In my defence, I was busy with other stuff when the submission date rolled around and I assumed (and still assume) that support for this legislative measure is so deep and broad (both in Parliament and in society as a whole) that it is going to become law without my help.

But those aren't very good excuses for not doing the right thing. So this post is partly by way of a guilty ex post facto attempt to have a public say on the issue. But it's also an attempt to counter what I think is a wrongheaded and potentially scare-mongering submission on the Bill from the New Zealand Law Society.

Before l get to that latter issue, let me just set out for the record my views on the principles behind the Bill as it stands. Same-sex couples should be allowed the same legal right to marry as straight couples currently enjoy. I think my argument on this point is so powerful that it's not necessary to talk about it.

Beyond that fundamental issue, I don't really care if some religious organisations refuse to conduct marriage ceremonies for same sex couples. To my mind, if a church or other religious group doesn't want teh gayz or lesbos getting hitched in its buildings by its minister, that's a hang-up which reflects badly on its moral worldview. It's wrong ... but there's lots of things that religious groups think and do that I believe to be wrong (just as there's lots of things that religious groups think and do that I believe to be right). And as a good, card-carrying liberal, I think that religious groups (like other groups in society) ought to be allowed to think and do (at least some) things that I happen to believe are wrong.

So if the effect of Louisa Wall's Bill was to require religious organisations (or, more precisely, those who act as ministers or officiants for religious organisations) to solemnise the marriage of same-sex couples when that religious organisation does not want to do so, then that would be a bad thing. 

However, does the Bill do this? An Auckland lawyer, Ian Bassett, produced a legal opinion for Family First that says it would. And now the Law Society, in its submission on the Bill, has echoed that conclusion (or, at least, said the conclusion might be correct). 

To begin with, I note that these legal views run counter to the Human Rights Commission's take on the issue. And as that is the body most likely to consider any challenge to a religious group's refusal to marry a same sex couple, its dismissal of the issue ought to carry some weight.

 Furthermore, I think that the Law Society's opinion on the Bill is (with respect) both poorly argued and, if correct, vastly more destabalising for religious organisations than the Society itself recognises. In fact, the consequences of the claim that the Society makes are so extreme that I think they indicate that something is fundamentally wrong with its submission. Explaining just why this is so requires a bit of a tour through the law on marriage (sorry!).

Up until 1993, the only relevant legislation was the Marriage Act 1955. Under this Act (which still applies today), to be married you first must apply for a marriage licence from a "Registrar" (a state official). Once you've got this licence, for you to actually become married you then must have your marriage "solemnised" by the marriage celebrant named in the licence - who may or may not be a religious official. The Marriage Act then contains lots of convoluted rules about who gets to be a recognised marriage celebrant, as well as some exemptions from the rule that a marriage must be solemnised by a celebrant, in an effort to cater to all the weird and wonderful forms of religious/spiritial beliefs around how "marriage" should happen.

(As an aside, what Louisa Wall's Bill would do is, in essence, allow same sex couples to apply for and receive a marriage licence just like straight couples can at present. A couple getting a marriage licence would then need to go through the additional step of having their marriage solemnised by the celebrant named on the marriage licence ... whereupon they would become "married".)

However, the Marriage Act then contains section 29, which states:

A marriage licence shall authorize but not oblige any marriage celebrant to solemnize the marriage to which it relates.

Why is this in the Act? Well, when a person applies for a marriage licence, they have to say who is going to carry out the marriage. But the applicant doesn't have to prove to the Registrar that the person they name as the celebrant has actually agreed to solemnise the marriage - it's simply a case of the applicant telling the Registrar "I'll be getting married to this person, at this place, with this celebrant carrying out the legal niceties" and the Registrar then granting the licence to so so.

So, what section 29 makes clear is that just because an applicant has obtained a licence from the State saying that a given celebrant can marry them, that licence doesn't then mean the celebrant has to do so. Otherwise, an applicant for a marriage licence could bind an otherwise unwilling celebrant to the task simply by naming her or him to do so on the licence application - even if the named celebrant is a Catholic priest and the applicant a thrice-divorced woman (a point I'll be coming back to).

Or, to put it another way, section 29 is a recognition of the separation between the State and the Church(es): the State licences you to wed, but you still have to get a Church's (or other celebrant's) agreement to actually marry you ... and the first process does not imply anything for the second.

So much for the story up until 1993. Because in that year, the Human Rights Act (HRA) was enacted. 

Most importantly, the HRA sets out a range of "prohibited grounds of discrimination". One of these prohibited grounds is sexual orientation (although there are also a bunch of others, to which I'll return). Then, the HRA states that:

It shall be unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public—

(a) to refuse or fail on demand to provide any other person with those goods, facilities, or services; or

(b) to treat any other person less favourably in connection with the provision of those goods, facilities, or services than would otherwise be the case,—

by reason of any of the prohibited grounds of discrimination

Now, the Law Society in its submission thinks that this provision might be very important. Because, it says, if marrying people is a "service" that a religious group provides to the public, then a religious group (or its officiant) that refuses to marry a same sex couple would be in breach of this privision of the HRA. And that would be an unlawful action that would open the religious group (or its officiant) to legal sanction.

(I note that the Law Society's submission doesn't actually say that marriage is a service provided by a Church. Rather, in a single sentence it equivocates that: 

While a particular minister of religion might not consider him or herself to be offering "services" to the "public" (or a section of it), this is far from clear and is at least vulnerable to challenge.

With respect, a point as critical to the Society's submission as this is deserved a bit more research ... simply saying "this might be argued about!" isn't very compelling legal analysis.)

Well, that would all seem pretty cut and dried. If marrying people is a "service" (which it may or may not be ... the Law Society simply says it is arguable), then the law says you have to provide it to same and opposite sex couples alike. Except that (in a section not referenced by the Law Society, which is surprising to say the least), the HRA also states that:

To avoid doubt, an act or omission of any person or body is not unlawful [under the HRA] if that act or omission is authorised or required by an enactment or otherwise by law.

Which then brings us back to section 29 of the Marriage Act. Because, as this section authorises a marriage celebrant to refuse to marry any given couple even if they have received a valid licence to do so, then a celebrant would seem able to continue to do so on the grounds of the couple's sexual orientation irrespective of the provisions of the HRA. 

"Ah!", says the Law Society, "but section 29 may not actually say what it seems to say!" Because in this bright new age of human rights, a court could very well read this nearly 60 year old provision as saying something like:

A marriage licence shall authorize but not oblige any marriage celebrant to solemnize the marriage to which it relates unless that celebrant refuses to solemnize the marriage because of a prohibited ground of discrimination.

And if a court were to do so, there would then be no legal protection against the operation of the HRA for a religious group that refused to marry a same-sex couples.

Well, maybe. I can't definitively say that the Law Society is wrong on this. Courts can do all sorts of odd things, and the ability to mess with statutory language in order to produce "rights friendly" outcomes is just one of them. But I think there's pretty good context and consequence based reasons for thinking that a court wouldn't do what the Law Society suggests it might.

Because the only "prohibited ground of discrimination" I've talked about so far in this post has been sexual orientation. But this is far from the entirety of the HRA's reach. You can read all the prohibited grounds here, so for now I'll just pick a few very relevant ones out:

  • sex, which includes pregnancy and childbirth;
  • marital status, which means being ... a party to a marriage or civil union that is now dissolved, or to a de facto relationship that is now ended;
  • religious belief;
  • ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions.

Here's why they matter - put in bolded italics so that the point is made in its full, glorious impact:

If the Law Society is right that, if Louisa Wall's Bill passes, a religious organisation will not legally be able to refuse to marry same sex couples, then since 1993 religious organisations could not legally refuse to marry a couple for any of the above listed reasons.

That's right. If the Law Society's analysis is correct and the Marriage Act, s 29 won't protect religious organisations who don't want to marry same sex couples, then by that very same analysis the Catholic Church's refusal to marry divorced persons has been unlawful since 1993 ... it's based on an individual's marital status, which also is a prohibited ground of discrimination. Equally, by the Law Society's analysis, a Baptist pastor who tomorrow refuses to solemnise the marriage of a athiest couple on the basis that they aren't Christian believers is unlawfully discriminating on the basis of their ethical belief.

In fact, if the Law Society's analysis is right, then since 1993 basically every conceivable reason that a religious group would have for not solemnising a particular marriage between two people was unlawful. And that is, it seems to me, a consequence that is so extreme as to call into question the logic that produces it. In short, if a legal analysis leads you to an absurd conclusion, then something has gone wrong with it irrespective of its formal coherence.

Furthermore, as I noted above, section 29 of the Marriage Act is a recognition that the State and the Church(es) - as well as other religious groupings - have quite different roles in relation to marriage. The State issues marriage licences, based on some standard rules as to who can and can't be married. But the decision of a religiously motivated marriage celebrants to act on that licence involves moral or spiritual factors entirely separate to the State's; factors such as "do I think this union is sanctified in the Lord's eyes", or "are the persons wishing to enter into marriage within our congregation suitable to do so", or the like. So the former decision to issue a licence cannot bind the latter decision to solemnise the union because they are reached on fundamentally different grounds ... as section 29 recognises.

Given this legislative context, the chances of a Court messing with this separation of State from Church(es) and saying (in essence) "if the State thinks someone can marry, then you Churches must marry them irrespective of your moral/spiritual beliefs" are very, very slim-to-negligible. In fact, the chances are so slim that I'm prepared to say they are as close to zero as we can get in this world of quantum uncertainties and black swan events.

So, my message is this: the risk that a Church minister (or other religious officiant) in a post-same sex marriage world will have to solemnise the marriage of a same sex couple against his or her will is exactly the same as the risk that a Catholic priest has faced since 1993 of having to solemnise the marriage of a thrice-divorced woman. And if you haven't been  tearing your hair out in horror at the prospect of the latter, then why are you now worrying about the former?

Comments (33)

by Frenchy on November 21, 2012
Frenchy

Started to think your argument was a little weak in the middle there, but then BOOM, the twist at the end is brilliant. A picture of logic, as always, Professor. 

by NiuZila on November 21, 2012
NiuZila

Interesting argument at the end Andrew.  Do you know if there have been any challenges before the Court by an, to use your analogies, a divorcee against the Catholic church, or atheists against a Baptist minister?

I'm thinking people assumed thats how s29 works, but has never been tested, even after all these years.  I mean, most people probably assumed the foreshore and seabed was always vested in the Crown/State, until it was tested in the Courts.

by James Meager on November 21, 2012
James Meager

A solid argument as usual, Professor.

Are you able to comment on the following:

A Baptist church wishes to employ a social worker to minister to university students, and a person in a gay marriage applies. Gay marriage is against the beliefs of the church, and the individual is unsuccessful. They take the church to the Human Rights Commission - what protections in law exist for the church?

by Andrew Geddis on November 21, 2012
Andrew Geddis

@NiuZila:

Do you know if there have been any challenges before the Court by an, to use your analogies, a divorcee against the Catholic church, or atheists against a Baptist minister?

I can't categorically say there have not been, but I'm pretty certain this hasn't happened. If it had, I think we'd see reference to it in the Human Rights Commission statement on the issue of same sex marriage that I linked to in my post.

I also don't think the comparison with the Foreshore and Seabed situation is quite accurate. There were lots of legal commentators who said that the assumption that this land was in Crown ownership was legally flawed - the Court of Appeal's judgment on this issue was not a bolt from the blue (in legal terms). With the issue of the HRA's impact on a religious group's freedom to refuse to marry (an issue that, I reiterate, exists irrespective of whether same sex marriage is permitted), there would have to be substantial judicial meddling with statutory language and intention in order to bring about the result the Law Society suggests is a possibility. And I am virtually certain (subject to the caveat that nothing in this fallen and imperfect world is ever completely predictable) that no court would engage in that level of meddling - it would make such a nonsense of the structure and purpose of the Marriage Act that it simply is not a viable reading of the legislation. 

@James,

I can't fully answer this because I don't purport to be an expert on the application of the HRA. (I'm sure there's readers lurking out there who are more ).

Off the cuff, my thoughts would be:

(1) The HRA states that:

Where an applicant for employment or an employee is qualified for work of any description, it shall be unlawful for an employer, or any person acting or purporting to act on behalf of an employer ... to refuse or omit to employ the applicant on work of that description which is available ...by reason of any of the prohibited grounds of discrimination.

So an immediate question might be whether being in a same-sex marriage disqualifies a person from adequately fulfilling the role of a Baptist social worker on doctrinal grounds (just as being in a straight marriage could disqualify a person from becoming a Catholic priest). No doubt there's lots of precedent as to what "qualified" means in this context, but as I say, I'm not an expert on the HRA's application;

(2) Even if the Church's decision is in breach of the HRA, how has same sex marriage created the problem? I guess it is possible that you could have a religious organisation that says "we'd quite happily hire a gay social worker who is living in an open de facto relationship, or in a Civil Union ... but not one who is married!" But I think that this is more likely a theoretical possibility than an actually likely to occur possibility. In which case, the problem for the Church is that the HRA doesn't let them discriminate against gay people, with the marriage issue being something of a smokescreen.

by Idiot/Savant on November 21, 2012
Idiot/Savant

I think you're right about the divorce angle (and what it says about Catholic homophobia).  But I'm interested in why you think this is an HRA case rather than being covered by s3(b) BORA.  Aren't marriage celebrants persons performing a public function conferred by law, effectively agents of the state?

 

by Andrew Geddis on November 21, 2012
Andrew Geddis

I/S,

Yes - that is an alternative way of analysing the issue. (The Law Society also mentions it in passing, but its focus really is on the HRA aspect ... and as I largely was responding to their submission, I did likewise.) But even if we go down the route of assuming that solemnising a marriage is a "public function, power or duty" (which it may very well be ... see the test in Ransfield v Radio Network), then there's still more work needs done:

(1) First, in order to decide if refusing to marry a same sex couple is inconsistent with the NZBORA, we would have to do a s.5 balancing of the right not to be discriminated against with the right to hold and manifest religious beliefs. And I think (along with the Human Rights Commission) that this is a pretty easy balancing to conduct ... the right of Churches and other religions to be bigots in terms of who they will marry (whether it be toward same sex couples, divorced persons, non-believers, or whatever) outweighs the right of those being discriminated against when it comes to who will actually marry them. Hence, I think a religious officiant saying "I won't marry gay people (or divorced people, or people of a different faith, or women pregnant from pre-marital sex, etc, etc)" isn't inconsistent with the NZBORA even if it applies to them through s.3(b)

I see this conclusion as being in keeping with New Zealand's largely pragmatic approach to "Church and State" type issues ... we don't pay too much attention to relgious concerns when it comes to deciding what our law will be (see abortion/prostitution reform/decriminalising homosexuality/same-sex marriage), but by the same token we don't go messing around with what religious folks do in regards their own beliefs (even where this has some public legal consequence). 

(2) Even if you could find a court that says that a relgious group refusing to marry a same sex couple IS inconsistent with the NZBORA because it limits the right to be free from discrimination in a way that can't be demonstrably justified in a free and democratic society (regardless of any rights to religious belief or manifestation), you still have to use the NZBORA s.6 to re-write the Marriage Act 1955, s.29 in a way that removes the apparent right of a celebrant to say "no" to marrying anyone. And (as I say in my post) I really don't think you'll convince a court to meddle with the statutory language to that extent, given the context of the section and the consequences of doing so.

Of course, you and I know that there's an easy fix to this whole issue. If we totally separated the legal form of marriage from the religious ceremonial form, then there'd be no problems. So, if the Churches, etc really are worried that they may one day have to let their officiants marry same sex couples, the easy fix would be to remove their function as legally solemnising a wedding. Make couples swear the appropriate vows before a Registrar and witnesses when picking up their licences and thus become legally married - then let everyone go off and have whatever ceremonies they want, wherever they want, however they want. 

Problem fixed.

by Bruce Ellis on November 21, 2012
Bruce Ellis

I have enjoyed the lengths one needs to go through to tease out all the legal possibilities of the proposed legislation, but in all reality it seems to me that it would take a pretty vindictive mind and with deep pockets for someone to take court action to force someone to solemnise a relationship who didn't really want to do it. After all this is supposed to be (and in my experience has been) one of a couple's most treasured moments in life, so surely they would choose a celebrant who would help make that such an experience.

by BeShakey on November 21, 2012
BeShakey
Its a bit petty to describe people who want equal rights in a particular area as having a 'vindictive mind'. On that principle wouldn't the gay couple who complained about being refused accommodation be wrong, since they shouldn't want to stay somewhere that doesn't want them. An awful lot of progress has been made by forcing people to accept the equal rights of others when they would really rather not.
by Bruce Ellis on November 22, 2012
Bruce Ellis

i absolutely am on your side re equal rights and didn't mean to question that at all, I was just having difficulty in getting my head around the pragmatic issue of someone actaully putting themselves in the situation where they would want their significant moment solemnised by someone who didn't want to be doing it.

 

by Andrew Geddis on November 22, 2012
Andrew Geddis

@Bruce:

I was just having difficulty in getting my head around the pragmatic issue of someone actaully putting themselves in the situation where they would want their significant moment solemnised by someone who didn't want to be doing it.

Yes ... that would seem to be unlikely (as well as distinctly unpleasant). 

Although I think there are more conceivable situations where the issue might arise in practice. For example, if you have a religious group which disagrees internally on the issue of whether it should recognise/solemnise same sex marriages (as is the case with the Anglican Church at present). There may then be a same sex couple who are a member of that religious group and wish to marry within it, and there may be an officiant from that group who wants to marry them ... but the tenants of the group forbid that officiant from doing so. So if the marriage takes place, it opens the officiant up to censure by the religious group.

In such a case, the couple might try to use human rights law to say "the religious group has to allow the officiant to do what he/she wants to do and solemnise our marriage" - or, rather, "under human rights law, the officiant has no choice but to do what she/he wants to do anyway". In which case, it wouldn't be some outsider trying to force a hostile officiant to their will, but rather some members (including an officiant) within the religious group trying to force the rest of the group to adopt their views.

by Graeme Edgeler on November 22, 2012
Graeme Edgeler

To what extent does your analysis extend to celebrants who are religious in a way which does not wish to recognise same-sex unions, but who do not solemnise marriages as part of a religious duty (in the way a priest or minister does)?

Would your analysis also apply to relgious organisations supplying other services, for example, as adoption agencies for people who wish their biological children to be brought up in accordance with their faith? If the church sees raising the children of its followers as a matter of devotion, can they also "discriminate" against non-religious or same sex couples, for example?

by Graeme Edgeler on November 22, 2012
Graeme Edgeler

I see this conclusion as being in keeping with New Zealand's largely pragmatic approach to "Church and State" type issues ... we don't pay too much attention to relgious concerns when it comes to deciding what our law will be (see abortion/prostitution reform/decriminalising homosexuality/same-sex marriage), but by the same token we don't go messing around with what religious folks do in regards their own beliefs (even where this has some public legal consequence).

Isn't that the history of section 56 of the Marriage Act?

by Andrew Geddis on November 22, 2012
Andrew Geddis

@Graeme:

Would your analysis also apply to relgious organisations supplying other services, for example, as adoption agencies for people who wish their biological children to be brought up in accordance with their faith?

We don't have such things in New Zealand - adoption is handled by CYF. A birthparent can specify the religion of a prospective adotive family (ie that the child is only to go to a Catholic family, etc), just as they can specify the race of a prospective adoptive family. That hasn't raised any HRA/BORA issues to date - so I can't see a birth parent saying "I only want my child to go to a straight couple" doing so.

(Incidentally, this assumes that changing the Marriage Act to permit same sex marriage also would flow through to permitting joint adoption by a same sex couple. I understand that may not be 100% clear ... .)

A more relevant question might be whether a Christain counsellor who offers marriage counselling services expressly based on biblical principles could refuse to do so to a same sex couples. I would have thought not ... there's no equivalent of teh Marriage Act, s. 29 to take her/him out of the HRA's reach.

Of course, whether any counselling would be any use is another question!

by Graeme Edgeler on November 22, 2012
Graeme Edgeler

We don't have such things in New Zealand - adoption is handled by CYF.

I am aware. I was addressing the principle. As I was with the other question, which you may recognise as the factual scenario from Re: Marriage Commissioners Appointed Under the Marriage Act :-)

Apparently - although I haven't seen it - the VUW Law Faculty may disagree with you, on some point at least.

by Andrew Geddis on November 22, 2012
Andrew Geddis

@Graeme:

I am aware. I was addressing the principle. 

And my point is that given that we've excluded religious organisations from having a role in adoption altogether, I'm not sure that there's any point in doing so. As for religiously (or even morally) motivated celebrants who aren't ministers/officiants in a schedule 1 or gazetted religious organisation ... they are a bit of a curly one, aren't they? I guess they've still got s.29 to fall back on, but the NZBORA balancing becomes a lot trickier in their cases.

All the more reason, then, to give the legal marrying role to Registrars and let celebrants (be they part of a religious group or not) do their own thing. But I guess in that case they are more likely to just be "offering a service" as per the HRA ... so they can't discriminate. Hmmm - not easy, is it?

Apparently - although I haven't seen it - the VUW Law Faculty may disagree with you, on some point at least.

I regard this as the strongest evidence yet that I am right in my analysis :-) 

 

by Graeme Edgeler on November 23, 2012
Graeme Edgeler

As for religiously (or even morally) motivated celebrants who aren't ministers/officiants in a schedule 1 or gazetted religious organisation ... they are a bit of a curly one, aren't they? I guess they've still got s.29 to fall back on, but the NZBORA balancing becomes a lot trickier in their cases.

The Saskatchewan Court of Appeal appears to have resolved them: such people are state officials, and cannot discriminate.

by Andrew Geddis on November 23, 2012
Andrew Geddis

Yes - I had seen that. But it was, of course, in the context of an advisory opinion on the Charter consistency of proposed legislation allowing marriage celebrants who perform non-religious solemnisations to opt-out of same sex marriages. Not sure if it translates over to the NZ legislative context (i.e. even if a NZ court took the same NZBORA s.5 view of the issue, could it use NZBORA s.6 to rework the Marriage Act s.29?).

by Graeme Edgeler on November 23, 2012
Graeme Edgeler

(i.e. even if a NZ court took the same NZBORA s.5 view of the issue, could it use NZBORA s.6 to rework the Marriage Act s.29?).

I think it could. Does s 29 allow a marriage celebrant (as a state official) to refuse to perform mixed race marriages? I think the answer is "no". In exercising powers, state officials must do so lawfully, and for proper purposes. For example, a state offcial deciding whether to issue a trespass notice cannot do so to squelch free speech.

There are numerous other bits of our law which authorise but do not oblige a state actor to take a particular course of action in their official duties. Could a judge exercising sentencing jurisdiction decline to consider the various discharges listed in section 11 of the sentencing act for a driscriminatory reason?

by Andrew Geddis on November 23, 2012
Andrew Geddis

Thinking about this further ... there are two ways you can be married (putting to one side the oddity of Quakers and "exempt religious bodies"):

(1) By a "marriage celebrant" (s.31), or

(2) By a Registrar (s. 33(1)).

Let's accept that a Registrar's power to marry is a "public function", and the s.5  balancing test would not justify a Registrar's refusal to exercise those powers in the case of a same sex couple because of her or his personal religious/moral beliefs (not that a plain reading of the Marriage Act appears to allow a Registrar to refuse to marry anyone - the relevant section states "...any marriage may be solemnised at the office of and before the Registrar and in the presence of 2 or more witnesses on any day" ... and s.29 is not an issue here because a Registrar is not a "marriage celebrant").

Registrars thus provide a means by which any couple who qualify for a marriage licence actually can be married, with no further discrimination allowed (i.e. Registrars must marry everyone and anyone who has a valid licence and meet the relevant waiting periods, etc). A NZBORA analysis only underscores that pre-existing role.

Let's also accept that even if some marriage celebrants (those from schedule 1 or gazetted relgious organisations) are conducting a "public function" when solemnising marriages, their refusal to carry out this duty would not breach the NZBORA because a s.5 balancing will place their right to religious belief and manifestation thereof over the right of a same sex couple not to be discriminated against. (I get that some folks, maybe even 24 of VUW's law faculty, worry that one day some court may think differently about this ... but as I say, I'll believe it the day I see a Court tell the Catholic Church it has no choice but to start marrying divorced folks.) Hence, there is no reason to even try to read s.29 any differently to what it has been taken to mean until now - if the State gives you a marriage licence, that doesn't then require these sorts of celebrants to marry you.

So we get left with marriage celebrants who have been appointed to the role under s.11 (i.e. they personally are OK'd as celebrants, rather than just being able to perform the role because of their position in some religious organisation). Can these folk say "no" to marrying same sex couples? Well, note that they only get appointed if:

it is in the interests of the public generally, or of a particular community (whether defined by geography, interest, belief, or some other factor) that the person be a marriage celebrant.

Which means that at least some marriage celebrants are appointed because of their religious beliefs/status, to preside over (say) Jewish or Hindu or Mormon or whatever weddings because there are no gazetted religious groups that have officiants who can do so. In which case, their NZBORA religious belief/manifestation claims would seem to be just as strong as those celebrants from schedule 1 or gazetted religious groups (i.e. "the only reason I was given the public function of solemnising marriages in the first place was because of a relgious belief system that you are now seeking to require me to act in contravention of!")

So I guess my broader question would be, how do these "personally approved" marriage celebrants map on to the "marriage commissioners" that were the subject of the Saskatchewan case? And I suspect the answer is, not very well. After all, as the report of the case states:

the court noted that marriage commissioners are appointed by the government to perform non-religious ceremonies and are the only option for some same-sex couples seeking to tie the knot.

Which makes the Sakatchewan commissioners sound a lot more like Registrars under the NZ system (who, as I say, don't seem to have any choice about who they can and can't marry).

by Graeme Edgeler on November 26, 2012
Graeme Edgeler

Registrars thus provide a means by which any couple who qualify for a marriage licence actually can be married, with no further discrimination allowed (i.e. Registrars must marry everyone and anyone who has a valid licence and meet the relevant waiting periods, etc).

I had that idea in respect of adoption agencies in the UK - as long as there is somewhere that gay couple can adopt, does it matter if some state-approved adoption agencies don't adopt out to gay couples? I don't think it flew.

As long as everyone has a primary health provider, does it matter if some are set up to only take Maori patients?

As long as everyone gets an education, would it matter if some schools were white only?

by Andrew Geddis on November 26, 2012
Andrew Geddis

My point was that the existence of Registry weddings appears to differentiate the NZ case from the Saskatchewan one (at least, based on the linked report of the case), hence calling into question the applicability of that example.

In terms of analogising to other examples - adoption/health providers/schools - I don't think the comparison really works. Here's why:

(1) I think it is clear that the Marriage Act intends to set up a system of marriage whereby at least some celebrants (those from recognised religious groups) can discriminate (on "prohibited grounds of discrimination", or otherwise) as to who they will/will not marry. Even though that is not explicitly stated in the legislation, it is implicit in the structure of the Act (which goes out of its way to accomodate every little quirk of religious/ethical belief relating to marriage practices) and in the existence of s.29. This fact, I suspect, distinguishes the marriage question from the adoption question in the UK - I strongly doubt there was any statutory basis for saying that religious groups were intended to be allowed to discriminate when carrying out this role.

(2) I further think it is virtually inconceivable that the Human Rights Commission/Human Rights Review Tribunal/High Court would ever try to rework the Marriage Act so as to say to these sorts of celebrants "your religiously-based freedom to choose who you will/will not marry is overridden by the State's decision as to who may/may not get a marriage licence - if the State licences it, you must solemnise it". If anyone thinks that I'm wrong about that prediction, I've yet to hear why they think it could happen (i.e. a credible explanation of the process, rather than a simple "you never know what the future holds!" one ... because if we don't know what the future holds, then it is pointless doing anything to try and affect it).

(3) I also think it is virtually inconceivable that a Registrar could claim her or his right of religious belief/practice entitles her or him to refuse to solemnise a marriage of a same sex couple (or for any other prohibited ground of discrimination). The Registrar's role in actually carrying out marriages is as mandatory as her or his role in licencing marriages - so if some couple meets the basic civil qualifications, then he or she must serve them irrespective of personal beliefs about the morality of that union. 

(4) So we then have the intermediary case of "personal" marriage celebrants, who will have been appointed to that role for a whole variety of reasons (to provide someone to carry out marriages in remote regions; to allow couples with a desire for adventurous marriage ceremonies (i.e. in hot air balloons/on mountains/while scuba diving) to do so; to cater to a particular belief group who are not a recognised religious organisation under the Marriage Act; and so on). The question then is, are these "personal" marriage celebrants more like those from recognised religious organisations, or more like Registrars? And I suspect the answer may be "it depends on the individual celebrant" - some (probably most?) will have been appointed for wholly secular reasons unrelated to their own personal beliefs, some (relatively few?) will have been appointed for explicilty religious/spiritual reasons.

(5) Which then raises the question - should these "personal" marriage celebrants either be lumped into one category or the other (i.e. treated wholesale as if they are from a recognised religious organisation or are a Registrar), or should they be given individual treatment (i.e. some "personal" marriage celebrants ought to be able to claim an exemption based on their religious beliefs/practices, while some ought not to be). 

We can then try to turn this last question into a question about other things - are "personal" marriage celebrants more like Charter Schools or Public Schools? Or are they more like Maori health providers or general hospitals? But I'm not sure doing so actually helps answer the problem ... it's "simply"(!) a question as to whether we will burden the religious beliefs of a few (maybe even only a half-dozen, if that?) "personal" marriage celebrants for the benefit of assuring same sex couples that whichever "personal" marriage celebrant they approach to marry them, she or he won't be allowed to say "no - your union is morally wrong and I won't be a part of it".

(Of course, she or he can still say "sorry - I'm fully booked and so can't help you", but that would be lying and good religious people don't lie.)

by Graeme Edgeler on November 26, 2012
Graeme Edgeler

I do think the slippery slope is real on matters such as this. It may take us where we should go, but that doesn't mean each step isn't a step closer to something later.

When we were passing the Homosexual Law Reform Act, and opponents were saying "next they'll want to be married!" and supporters were arguing to the effect "this isn't about state recognition of homosexuality, it just shouldn't be criminal, no-one is calling for gay marriage", it could quite correctly have been argued "name one country in the world that has legalised homosexual acts, which has lead to allowing for gay mariage", but yet here we are. This isn't to say we shouldn't be here, but law changes like this do result in follow-on changes.

In this case, the follow-on may be an amendment to the marriage act that removes religion from it altogether, but the implied suggestion that this is the end of the fight seems unlikely.

 

by Andrew Geddis on November 26, 2012
Andrew Geddis

I do think the slippery slope is real on matters such as this. It may take us where we should go, but that doesn't mean each step isn't a step closer to something later.

Three points to that claim.

First, you can make a slippery slope argument out of anything. We shouldn't give women the vote, because the next thing you know they'll use their political power to force the Catholic Church to allow them to be priests. We shouldn't abolish the death penalty, because the next step will be getting rid of prisons. Etc, etc. So unless it is impossible to distinguish between two steps on either a principled or logical basis - such as my claim that if churches are required to marry same sex couples, then they also will be required to marry divorced persons, unbelievers, other religions, etc - we need to be careful how much weight we attach to such arguments.

Second, if there is indeed a slippery slope at play here, then you can't avoid going down it. So, for instance, even if we put in the Marriage Act a provision saying "For the avoidance of doubt, nothing in this Act or any other Act requires any marriage celebrant (or, some defined class of marriage celebrants) to solemnize the marriage of any person", then that section can always get taken out again by a future Parliament captured by the human rights zealots/gay mafia. 

(I also note in passing that your example involves legislative changes, not tribunal/judicial jiggery-pokery with the law ... and the latter is what religious groups (and the Law Society) fear. I reiterate my belief, which is yet to be gainsaid, that this simply will not happen.)

Finally, the leap from decriminalising homosexual acts to permitting gay marriage is not analogous to the leap from permitting gay marriage to requiring religious organisations to solemnize such unions. In the first two cases, there is no (credible) competing rights claim at stake. So an extension of the rights of one class of people (same sex couples) does not come at the cost of any rights of anyone else. Sure, religious folks may not like the fact that two men may be "married" in the same sense as a man and woman are, but their right to believe and practice their beliefs is not affected. However, in the case of forcing religious groups to act contrary to their doctrinal beliefs, there is a significant cost to their rights. Hence, there is a reason to believe that the "slippery slope" of change will stop short of this future event.

Of course, it may well be that at some point we go the way of France and institute a system of civil only marriages, with religious groups then able to add whatever extra ceremonial steps they wish to after the legal aspects are finished. And so maybe this is not the end of the fight, as you say. But what I am saying is the particular future that is being predicted as a possible one by some religious groups/the law society simply ain't one that will be brought about by the judicial branch of government. And if it could be brought about by the legislative branch ... well, there's nothing can be done about that.

by Graeme Edgeler on November 26, 2012
Graeme Edgeler

From a perusal of Bob McCoskrie's website, what the Protect Marriage campaign appear to fear is that if same-sex marriage is permitted, then those who oppose it personally, and say so on their facebook page with temperate language, or sign petitions etc, will be villified/lose their jobs etc.

by Andrew Geddis on November 26, 2012
Andrew Geddis

Well, whatever.

If someone can't handle robust criticism of their publicly expressed views, then they should not express them. And if and when someone gets sacked for saying that same sex marriage is immoral, that martyr can complain to the Human Rights Commission and gain compensation for a breach of s.22 of the Human Rights Act.

by Keir on November 27, 2012
Keir

I'm pretty sure in White's States of Desire he talks about the long run goal of some gay rights activism being marriage equality. So I don't think it is true that at the time of homosexual law reform no-one was talking about marriage equality. (Interesting interplay between incrementalism as a praiseworthy strategy for ``good'' minorities, and slippery-slope-ism as a Bad Thing.)

Purely out of interest, why do we always talk about Marriage Commissioners, and almost never Re Same-Sex Marriage?

by Andrew Geddis on November 27, 2012
Andrew Geddis

Good point, Keir.

by Graeme Edgeler on November 27, 2012
Graeme Edgeler

Purely out of interest, why do we always talk about Marriage Commissioners, and almost never Re Same-Sex Marriage?

Because Re Same-Sex Marriage addresses a question which no-one here considers debateable, and Re Marriage Commissioners addresses a question, the answer to which is in dispute.

by Keir on November 27, 2012
Keir

But I thought Re Same-Sex Marriage did address that question: what is the proper balancing of non-discrimination and religious freedom?

by Andrew Geddis on November 27, 2012
Andrew Geddis

Keir,

I think Graeme is saying that as the Re Same-Sex Marriage decision related just to whether it was Charter-compatible to say "religious groups don't have to marry same-sex couples", and I (and Graeme, and apparently everyone else) think that a NZ court/tribunal would reach exactly the same conclusion under the NZBORA, the decision doesn't help us all that much. (Although it may be good authority to back up what I and Graeme and apparently everyone else already think.)

Where there is potential debate, however, is in relation to celebrants who aren't in that role due to their being appointed by a recognised religious group. And that's what Re Marriage Commissioners touches on (even if not in a way that can be directly transposed into the NZ context).

by Graeme Edgeler on November 27, 2012
Graeme Edgeler

No. I was just wrong, and was mis-recalling what Re Same Sex Marriage was about.

by Andrew Geddis on November 27, 2012
Andrew Geddis

No. I was just wrong ...

Well, I never ... there are four words I never thought I'd see Graeme have to write!

by Jeff McClintock on February 25, 2013
Jeff McClintock

"A Baptist church wishes to employ a social worker to minister to university students, and a person in a gay marriage applies. Gay marriage is against the beliefs of the church, and the individual is unsuccessful. They take the church to the Human Rights Commission - what protections in law exist for the church?"

That's quite shocking. My school actually has a Baptist councillor, Do I have to accept that my state school's counciller was hired on the condition that she belives homosexuals evil? (bear in mind that some of the sudents are no doubt homosexual, and have only the one counciller). Can the state hire bigots 'indirectly' with full protection of th law?

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