Two big legal issues in the one day! Lucky I'm on top of my game ...

It seems Pundit topics are a bit like buses. You are waiting for ages, passing the time by throwing spit-balls at a nerdy kid in glasses and apparently driving him completely, barkingly insane, when all of a sudden two double-deckers come charging over the hill in convoy.

So today the Supreme Court handed down its decision on the New Zealand Maori Council challenge to the partial sales of the hydroelectric generation SOEs, while Parliament's Government Administration Committee reported back Louisa Wall's Marriage (Definition of Marriage) Amendment Bill. I'll take each of them in turn.

First, the Supreme Court. Best. Decision. Ever.

OK, that's going to be controversial, given my status as a card carrying member of the left-wing intelligentsia. But here's my thinking.

First, the Court was able to construct a unified approach that produced a unanimous judgment issued in the Court's name instead of any one judge. A 5-0 ruling that all judges are prepared to stand behind is the best response to a potentially divisive and controversial issue with highly political overtones. It speaks with exactly the right voice.

Second, I think the decision is legally sound. Whatever status the Treaty of Waitangi ought to have in New Zealand law, it would require some judicial alchemy to turn a legislative requirement to abide by Treaty principles as presently understood into a freeze on even partly selling-down the equity stake in state owned assets. Furthermore, it was wise of the Court (and its various members) to recognise the potential dangers in trying to practice alchemy in the current political and constitutional context.

Third, there was something in the judgment for everyone. Sure, the NZMC ultimately lost - but the fact it was able to get the Court to agree to review the Government's plans at all (in other words, find that the obligation to abide by Treaty principles applies to the partial assett sales), and then only find that those plans were lawful because of the Government's stated willingness to deal with Maori as and when their rights to fresh water are clarified, is as good a loss as you could hope for. And, of course, the Government gets a green light for its plans to sell-off the 49% equity stake, thereby finally delivering on a campaign promise (and maybe getting itself back into policy delivery, as opposed to damage control, mode).

So while I'm not exactly over the moon about what the Government wants to do (see above reference to being a card carrying member of the left-wing intelligentsia), I'm very glad the Supreme Court unanimously found that the law permits them to do it. Ultimately, the way Maori claims to water get dealt with is a political question that require complex negotiation and hard bargaining, and that's not a place for any court to be splashing around in.

Second, the report on the Marriage (Definition of Marriage) Amendment Bill. Meh ... whatever.

The Committee recommended that it pass, with some changes. No surprise there - this is an issue that a majority of voters want to see become law, while the minority who oppose it don't matter enough in political terms to stop it. If that sounds harsh, well ... I guess it is. But it's how politics works in a democracy.

Needless to say I'm completely happy with this state of affairs in regards this issue (reference again to being a card carrying member of the left-wing intelligentsia). On others, I've been less than happy. But again, that's just how politics works in a democracy ... you lose, then you win.

I'm even happy with the Comittee's recommendation to amend the Marriage Act to make it clear that marriage celebrants from religious organisations don't have to perform same-sex marriages if it conflicts with their religion:

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.

In a previous post, I argued that this provision isn't actually needed - that no-one would be able to use human rights laws to force such celebrants to marry them. But if Parliament wants to make it crystal clear that this is the case, then whatever ... no skin off my nose. But a question, and a point.

The question is in regards to 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). They won't be covered by the extra-special protection the Committee is proposing for religious marriage celebrants. But they'll still be covered by the existing "you don't have to marry someone just 'cause they've got a licence" provision.

So ... what's their position under the proposed law, if they want to refuse to marry a same-sex couple?

The point I want to make is a bit of a snarky one. Imagine one of the various Christian Identity grouplets sets up a church in New Zealand, and becomes an "approved organisation" under the Marriage Act 1956 (thereby enabling it to solemnise marriages). A part of this group's belief system is to "view racial miscegenation as a sin and a violation of God's laws as dictated in Genesis of 'kind after kind' (Ex. 21:22, Lev. 20:13)." And so it will not marry a couple of mixed race.

Well, the Government Administration Committee's proposed change says that this is perfectly fine. Just as is the Catholic's church to refuse to marry same-sex couples. Which is actually a little bit icky, when you think about it that way.

(Of course, we might try to do an end-run around this conclusion and say that the Registrar-General would never agree to list such a "church" in the first place ... but why not? On what grounds could she/he refuse to do so?)

Comments (3)

by Chris de Lisle on February 27, 2013
Chris de Lisle

When my grandparents were married, the Anglican priest almost refused to marry them because my grandfather was a Congregationalist rather than an Anglican, i.e. he was discriminating on the basis of his religion.

Is it currently legal discrimination for a priest to thusly refuse to solemnise a wedding on the basis of the to-be-weds' religious beliefs? And if so, how would that (currently) be different from discriminating against the to-be-weds on the basis of their racial backgrounds?

(Especially since these things tend to be intertangled - If a priest refuses to marry a couple on the grounds that one of them is a Jew, is that religious or racial discrimination?) 

by Kyle Matthews on February 28, 2013
Kyle Matthews

It's a strange debate - you do wonder what would have been the instance where someone would have taken a religious celebrant to court to force them to marry a same sex couple - "yes, we really want this person who is against everything that our relationship is to marry us". It feels pretty different than a Woolsworth counter in Greensboro even if it's the same principle

I guess there might be some people in religions who want to be married inside their religion, but that feels like a wider issue of how some religions approach same sex relationships in general rather than just how they approach them getting married.

by Graeme Edgeler on March 01, 2013
Graeme Edgeler

'you do wonder what would have been the instance where someone would have taken a religious celebrant to court to force them to marry a same sex couple - "yes, we really want this person who is against everything that our relationship is to marry us" '

That wasn't the concern. It was more that people would claim discrimination and sue for compensation or other 'punishment' under human rights laws.

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