by Kevin Hague
One of the themes winding its way through the debate over marriage equality is the relationship between the church and the state. New Zealand has no official religion and great effort has been expended to keep the church out of law-making and the State out of religious matters.
So marriage presents an interesting set of issues, because it is both a religious institution (a sacrament in some denominations) and also a civil one. Two possible approaches to reconciling differences are to remove the church or the state entirely from marriage, but in New Zealand we have taken the view that both have legitimate roles.
While we speak of “the church”, that in fact conceals a considerable complexity. There is a multitude of faiths, denominations within faiths, and congregations within denominations. During the course of the debate over marriage equality it has become abundantly clear that opinions and practices concerning marriage vary very considerably. While the loudest church voice in the marriage equality debate has been from those Christian churches who wish not to marry same-sex couples, the select committee has also heard from many churches who wish to be able to marry same-sex couples and who are prevented from doing so by the current law.
When the Bill was introduced, its proponent, Louisa Wall, was absolutely clear that her intent was not to limit freedom of religious expression, and that has been the Select Committee’s driver also.
Some submitters, largely influenced by the lobby group Family First, which spread propaganda through conservative churches, believed religious freedom would be impacted in three ways. I respond to these concerns in this post:
1. Churches will not be forced to marry same-sex couples against their will
Section 29 of the Marriage Act authorises celebrants to marry couples, but explicitly does not oblige them to do so. One can easily imagine that there are many grounds upon which a particular church or a particular celebrant might object to marrying a particular couple, and since 1955 this provision has enabled them to decline to do so. In all of this time I am not aware of any decision to decline being challenged through the Courts, and it’s easy to see why: couples who wish to marry are looking for a positive experience, not one carried out grudgingly, against the celebrant’s will. Adding to the categories of couples who can marry does not alter, in any way, the law around celebrants declining to marry.
However, Family First found a barrister who thought there was a chance Courts would find that declining to marry a couple on the grounds of sexual orientation would be a breach of the Human Rights Act in relation to the provision of goods and services. While the Human Rights Commission – who would be the body to investigate any complaint of discrimination – has been crystal clear that it would not uphold a complaint of discrimination against a celebrant who declined to solemnise a couple, and the majority of legal opinion supports the HRC position, some reputable legal sources have also said that it’s not possible to say that no court would interpret the existing law in the way that Family First (and many religious folk) fear.
Most of the submissions against Louisa’s Bill expressed the fear that churches would be forced to marry same-sex couples even if it offends their genuine religious belief. While the real risk of this was assessed as being very small indeed, it was clearly nobody’s intention (sorry, not quite nobody – there was one submission arguing churches should be compelled to marry any couples who wished to marry and were legally entitled to do so) that the state should compel churches to act against their beliefs. For that reason the select committee added a clause to put beyond all doubt that any celebrant acting on behalf of or appointed by a church can refuse to marry any couple.
The churches who were concerned and who have examined the revised Bill appear to now accept that there is no risk that they will be required to do anything differently. Unfortunately some have now shifted their ground and are now professing concern for independent celebrants who are not acting on the authority of the church. The fact that some churches (and, of course, Bob McCoskrie and Colin Craig) have shifted ground in this way indicates that their actual position is a homophobic one, and that the ‘arguments’ being used are just window dressing to disguise that. For the sake of completeness though:
- The body representing independent celebrants reported an overwhelming majority of its members support the Bill;
- The committee received perhaps two submissions from independent celebrants who said they did not wish to solemnise marriages for same-sex couples, in both cases because of personal religious faith;
- The Human Rights Commission has made it clear that it would not uphold a discrimination complaint against such celebrants;
- If the HRC decision were appealed to a higher Court, most lawyers say the appeal would clearly fail, particularly if the refusal was because of religious or ethical reasons;
- It’s hard to imagine a celebrant refusing to marry a same-sex couple because of sheer prejudice (“I hate gays”) without an ethical or religious basis, but I concede that if such a case ever arose it would be interesting to see what the Supreme Court made of the legal balance between the explicit statement not obliging celebrants in the Marriage Act against the more general requirement not to discriminate in the provision of goods and services in the Human Rights Act, and the Bill of Rights Act.
- Why on earth would a couple go this rigmarole rather than just finding one of the vast majority of celebrants who wants to marry them?
Let’s also not forget that the position of independent celebrants is very clearly not about the relationship of church and state, or religious freedom. Independent celebrants act as agents of the state, with no qualification.
2. Churches will not be forced to say anything different
As submissions started to come in, we started to see an argument that we hadn’t seen before. Section 56 of the Marriage Act made it an offence to deny the validity of someone’s marriage. This provision, which so far as we can tell has never been used, finds its origin in the belief of the Catholic Church back in the 1950s that only marriages carried out in the Catholic Church were valid. Again, some churches and their adherents had been whipped up into a fear that this provision would be used once Louisa’s bill was passed to persecute and imprison those whose religious belief is that marriage should only be between a woman and a man. While this seemed far-fetched, there was certainly no intent for this to occur, so the select committee has simply recommended the repeal of this section, which seems to serve no useful purpose whatsoever.
3. No change is being made to the law around use of church buildings
Some churches and others could really do with a refresher on the human rights law that New Zealand has had since the 1970s, including the updated prohibited grounds for discrimination that were added 20 years ago. If a church makes its church hall available to the public for hire, if someone sells professional photography services, or if someone sells flowers for a living it has been against the law for them to decline to provide their goods and services on the basis of the sexual orientation of their customer for the past 20 years, and on the basis of the customer’s gender for almost 40 years. Louisa’s bill does not change this in any way. That doesn’t affect churches’ religious space, of course, and again who would want a wedding venue where they weren’t welcome, or a photographer or florist who was unsupportive? Once again these are not real arguments, but are red herrings designed to divert the eye away from the real source of opposition – prejudice.
The select committee has ensured that the State does not encroach on the religious belief or practice of churches. They will not be required to do or say anything different. But, in allowing those churches, denominations and congregations that DO support marriage equality to be able to exercise their beliefs too, this Bill will in fact extend religious freedom. It seems a shame that some in our churches see that as a bad thing.