The gays are NOT coming for your churches

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?