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.