November 22, 2014 in General
Conservative Christian Otago University law academic Rex Ahdar has provided an unexpectedly informative comparative¬†offering on celebrants rights in the context of civil marriage equality across several western jurisdictions. Given Family First’s tiresome derivative wails that the “rights” of fundamentalist celebrants and religious institutions not to hold same-sex weddings was under ‘attack,’ it is refreshing to read this sober and nuanced corrective work in the November 2014 New Zealand Law Journal.
The Marriage (Definition of Marriage) Act 2013 notes (Section 29) that a marriage license authorises but does not oblige specific religious celebrants to solemnise or preside over same-sex civil marriages if their particular faith or denomination’s doctrine opposes religious sanction for same-sex marriage. Ahdar notes that while this protects affiliated conservative religious celebrants under that umbrella, it does not protect ‘indivdual’ conservative religious celebrants not affiliated to such an organisation, whose “religious freedom” may therefore be “abridged.”¬† The Ministry of Justice argued that individual unaffiliated celebrants perform a primarily civil function and not a religious one. Ahdar notes the ongoing ordination rights squabble within the Presbyterian Church over LGBT ministers but notes that the same denomination declined to coerce liberal Presbyterian ministers and congregations into not celebrating religious same-sex marriages, thus preserving their religious freedom to do so. However, the Anglican Church has no such settled doctrine on the inclusion or exclusion of same-sex couples, leading fundamentalist Anglican ministers to protest that their individual freedom of conscience was not being protected, and some fundamentalist Anglicans have already left their church over such allegations.¬† Ahdar seems to be upholding the Presbyterian Church ‘solution’ as a possible option in this context.
Given that they also perform a secular and civil function in solemnising civil marriages, registrars are not similarly able to use “religious liberty” excuses to behave in a discriminatory manner and are liable to face disciplinary sanctions from their employer if they do discriminate against same-sex married or civilly united partners, according to Canada’s¬† Sasketchewan Court of Appeal in Re Marriage Commissioners Appointed Under the Marriage Act 1955 (2005).¬† Like independent celebrants, these individuals are employed in a primarily secular and civil capacity.¬† In the Marriage (Same Sex Couples) Act 2013, Section 2 enables UK marriage celebrants to opt out of presiding over same-sex marriages, although the foundation is once again whether the doctrine of specific religious organisations either permits or disallows such recognition. The European Court of Human Rights has upheld the religious freedom of specific religious organisations (Sindacatul “Pastoral Cel Bun” v Romania: 2013), as opposed to that of individual UK marriage celebrants such as fundamentalist Lilian Ladele not to perform civil partnerships as public registrars employed in primarily secular and civil capacities.
Unfortunately, Ahdar spoils an otherwise excellent article by its somewhat intemperate ending, arguing that a hypothetical ‘future’ government might override the right to refusal of specific denominations or faiths not to perform same-sex marriages. It is odd that he doesn’t refer to similar developments in the British Columbian Supreme Court and the risks of radical “religious liberty” when that court wisely refused to recognise the argument that straight polygamy was a matter of “religious liberty” and that the Canadian state and its individual provincial governments had no “right” to prohibit it. Ahdar complains that the right to “religious freedom” of individual unaffiliated celebrants and public registrars are somehow “under attack” in this context. They are not. If they fulfil primarily civil and secular occupational functions, then the norms and rules of those public sector organisations must be observed.¬† Conversely, the right to collective religious observance, doctrine and religious freedom of practise is not ‘attacked.’¬†¬† It would have been good if Ahdar had told the whole story as well- that New Zealand’s Parliament allowed it to debate specific Supplementary Order Papers during the Marriage (Definition of Marriage) Act’s third reading. SOPs 182/183 and 187/188 wanted to postpone passage of the legislation to hold a referendum on the subject. SOP 202 would have specifically protected the rights of individual celebrants to refuse to conduct same-sex civil marriages. SOP 203 was a radical and reprehensible attempt to gut the Human Rights Act of its service provision discrimination section, which would affect civil celebrants outside religious organisations. All of these proposed SOP amendments were refused passage by large margins.¬† In the case of SOP 202, it was 82-22, while in the case of SOP 203, it was 80-36.
Ahdar is to be commended for clarifying the issue of celebrants rights, but it is a shame that his article was not more thorough and slightly more objective ¬†in its scrutiny of the debate.
Rex Ahdar: “Solemnisation of same-sex marriage and religious freedom” New Zealand Law Journal (November 2014): 397-400.