Will all marriage celebrants be immunized?

The Marriage (Definition of Marriage) Bill will soon, it seems, be passed. The Second Reading went through comfortably by 77 votes to 44 in Parliament last night.

I do not wish to debate the substantive merits of the Bill but rather to comment on the conscience clause inserted to protect religious liberty. Will marriage celebrants who object, on the ground of religious belief or conscience, to conducting marriage ceremonies for homosexual and lesbian couples be protected in law?

There have been numerous assurances that they will be. The latest version of the Bill, as reported back form the Select Committee, contains a clause that the Committee thinks will do the job.

Section 29 amended (Licence authorizes but not obliges marriage celebrant to solemnize marriage)

In section 29, insert as subsection (2):       

“Without limiting the generality of subsection (1), no celebrant who is a minister of religion recognised by a religious body enumerated in Schedule 1, and no celebrant who is a person nominated to solemnize marriages by an approved organisation, is obliged to solemnize a marriage if solemnizing that marriage would contravene the religious beliefs of the religious body or the religious beliefs or philosophical or humanitarian convictions of the approved organisation.”

There is a problem however. Despite the Committee’s hope that this version will provide the necessary clarity that the Ministry of Justice and Crown Law advisers sought, a flaw still remains.

The problem is that the exemption is not worded widely enough.

First, marriage celebrants who are independent and not members of any religious body or any approved organization are probably not protected.  Second, and perhaps even more importantly, ministers of religion of existing religious bodies may not be protected either. How so? A religious minister whose denomination is divided on the issue of gay marriage may not be able to point to any authoritative ruling, precept, custom or teaching of his or her denomination that clearly states that only heterosexual marriage is right and acceptable.

 The mainstream Protestant denominations—Presbyterian, Methodist, Anglican and so on—have struggled to formulate a clear policy on this matter. The long-running ordination of gay clergy wrangle in the Presbyterian Church is a reminder of how contentious matters of sexual practice and sexual orientation are.

A conservative (I would prefer the term orthodox, small ‘o’) Presbyterian minister who does not, before God, consider it right to marriage a gay couple would not be confident he or she could point to any ruling of the PCANZ that would state that gay marriage contravenes the religious beliefs or tenets of that religious body. The blessing of the same-sex nuptials might contravene the religious beliefs of a sizeable (conservative) sector of that religious body and numerous adherents across the country, but that is not the same thing.

May I suggest a revised amendment:

“Without limiting the generality of subsection (1), no celebrant who is a minister of religion recognised by a religious body enumerated in Schedule 1, and no celebrant who is a person nominated to solemnize marriages by an approved organisation, is obliged to solemnize a marriage if solemnizing that marriage would contravene the religious beliefs of that celebrant.”

The right of religious freedom protects the religious liberty of all who practice religion, not just those whose beliefs accord with the official teaching of that denomination or group. Those holding eccentric or idiosyncratic or even downright heretical religious beliefs—beliefs which are at odds with the majority of those of that faith or inconsistent with received church doctrine or contrary to the views of the church hierarchy (if any such hierarchy exists)—ought to be protected too.

Religious freedom is not just for the orthodox or those who happen to abide by the views of the majority of co-religionists or the pronouncements of the ecclesiastical elite. Appellant courts have said things such as: ‘An “expert” or an authority on religious law is not a surrogate for an individual’s affirmation of what his or her religious beliefs are’ (Supreme Court of Canada): ‘[f]reedom of religion protects the subjective belief of an individual’ (House of Lords); there is  ‘no reason why a . . . subgroup of adherents cannot exist. The [European C]onvention does not require that all adherents of the same religion have exactly the same beliefs’ (English Court of Appeal); ‘Freedom of religion protects the subjective belief of an individual . . . religious belief is intensely personal and can easily vary from one individual to another’ (House of Lords).

In a case in which a Jehovah’s Witness’s pacifist beliefs were challenged because other members of his faith felt able to work in an armaments factory, whereas he did not, the US Supreme Court stated: ‘the guarantee of free exercise of religion is not limited to beliefs which are shared by all the members of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith.’

If an immunization from legal liability is to achieve its aim it ought to cover all those ministers and celebrants whose sincere religious or ethical convictions lead them to say ‘no’ to such ceremonies. 

Comments (5)

by Alan Johnstone on March 14, 2013
Alan Johnstone

Why just protect celebrants from being forced to participate?

What about everyone else? People who own venues or provide other services related to marriage for example? Is their consence of lesser value than a celebrant?

 

by Pete Sime on March 14, 2013
Pete Sime

If we set aside the fact that a couple probably wouldn't wish to engage the services of a celebrant who doesn't want to be there, I am not of the opinion that the facilitation of a ceremony would present a moral dilemma in the same way that, say, a pro-life doctor might refuse to counsel a patient on abortion. What you are suggesting, Rex, would be more along the lines of a devout Catholic JP refusing to witness the forms for a dissolution of marriage.

There is, I believe, a legitimate ethical distinction between being a participant in an act and being what is really a special class of witness to an act, who simply makes sure that there is a marriage license authorising the marriage and that the people getting married say the right words. There's a difference between making munitions and being a health and safety inspector who just has a bomb factory scheduled that day. 

by Daniel Laird on March 15, 2013
Daniel Laird

Ok, so what if I'm a marriage celebrant and my deeply held religious beliefs prevent me from conducting any wedding involving a non-white person, or someone who is unemployed, or the mentally ill?

 

If a couple really want their service to be presided over by someone whose beliefs are too abhorrent for them to carry out a function of the state without discriminating, then they should get legally married by a public servant, and then they can go have any kind of ceremony they want, with the bigot of their choice. 

 

In reality, no one is going to want to force someone to conduct their ceremony who doesn't believe in their lifestyle, so the average anti-gay celebrant can continue as they were, and just keep their views to themselves, but in my book there is no justification for legalising discrimination. 

by Rex Ahdar on March 15, 2013
Rex Ahdar

To Pete (if I may use your Christian name)

If there is a disitnction between being a "participant" and a mere witness or inspector, then I would say a Celebrant is a particpant, and an essential one too,

To Daniel

If a marrage celebrant could not perform the ceremony on account of his or her sincere religious beliefs- whatever the nature of those beliefs (gays sholuld not marry, people of mixed race should not, the mentally ill, etc) - then they ought not to be forced to.

You can see I support a very strong version of religious freedom here.

It is, under my version, not for the state to decide which religious beliefs count (and which don't) as 'valid' reasons justifiying an exemption.

To both (on the choice issue):

There are surley enough marriage celebrants that would-be spouses can indeed find one who reflects their religious or ethical worldview.

What you will find is that a politically-active gay couple will search out a celebrant who has a religious objection to them and then complain. The object here is political... to drum such celebrants out of the system for their 'bigoted' (read non-politically correct and non pro-gay) views. They want to bring a test case.

The queston is: can we live with state-approved officials who have such 'antiquated' 'bigoted' views or are we better off without them? Is there any room for exemptions at all or must those who wish to be celebrants bite the bullet and accept that whomever the state deems worthy of marriage, they too must accept?

 

 

by Daniel Laird on March 15, 2013
Daniel Laird

Hi Rex,

Thanks for your reply. 

My answer to your question is: no. There is no room for exemptions. Officiating a marriage is a state function, and there is no room for discrimination in the functions of our government.

As you point out, there are plenty of celebrants, and most couples will find one who agreed with their lifestyle. And as I pointed out in my original comment, most celebrants who hold views that would prevent them from marrying certain people would never have to face the issue - just keep their views to the self. And indeed, if a celebrant is asked by a couple to preside over a wedding they disagree with, I'm sure they can come up with a reason to excuse themself - no celebrant should be forced to conduct any wedding. 

But if someone feels the need to express their discrimination, I don't think there is a place for them as a celebrant in this country. And if a couple wants a wedding to be conducted by such a person, they are free to do it however they want - just get the paperwork signed by someone who is willing to uphold the human rights of New Zealand citizens 

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