Legal Uncertainty Sounds Warning About Redefining Marriage

Bob McCoskrie – Published in NZ Herald 29 Nov 2012
Despite what Professor Geddis says in his recent opinion piece ‘Churches’ gay marriage fears needless’, groups of all faiths in New Zealand are right to be concerned about MP Louisa Wall’s bill to redefine marriage.

During the 1st Reading of the bill in Parliament, Louisa Wall introduced the bill with the clear assurance that “…what my Bill does not do is require any person or church to carry out a marriage if it does not fit with the beliefs of the celebrant or the religious interpretation a church has.”

So far, so good.

The problem however is that the Bill does not contain any conscientious objection clause to that effect.  Instead, Louisa Wall, the Chief Human Rights Commissioner and now it seems also Professor Geddis want religious groups and ministers to rely solely upon that assurance, and on s29 of the Marriage Act 1995 and the abstract right to freedom of religion. 

But s29 was passed in to law nearly 40 years – prior to the current anti-discrimination laws – and was not intended to address the current situation.

Professor Geddis dismisses and makes light of the concerns of Muslim, Sikh, Christian, Jewish and other groups, whereas it is apparent that reliance upon s29 and the right to freedom of religion is problematic. 

The legal opinion obtained by Family First, the submissions to the Parliamentary Select Committee by the New Zealand Law Society, and by 24 law professors and lecturers of Victoria University including human rights expert Professor Claudia Geiringer indicates there is a real issue about whether s29 and the right to freedom of religion will give marriage celebrants (including church ministers) exercising their public function the right to refuse to marry same sex couples.

Labour’s Shadow Attorney-General Charles Chauvel accused Family First NZ of ‘bearing false witness’ and ‘scaremongering’ when we initially raised concerns about the effect of the bill. It appears politicians may be misunderstanding the legal implications of the Bill.

Based on the interpretation of s29 by the Human Rights Commission, Professor Geddis, and Louisa Wall, a marriage celebrant could lawfully decline to marry a particular couple because they are of different races or because the marriage celebrant disliked persons of a certain race (i.e. racial discrimination). Of course, that is completely unlawful and would quite rightly be a breach of s19 of the NZ Bill of Rights Act.

What has happened overseas when same sexual marriage have been legalised? The legal opinion obtained by Family First states:

“…in essence the Supreme Court of Canada ruling [in 2004] was that the right to religious freedom in the Canadian Charter demanded a specific legislative conscientious exemption provision for marriages in sacred spaces and for religious officials.  In Canada and the US where there are supreme law constitutions which guarantee religious freedom, it is notable that states still enact clear exemptions.  This is the norm.  Citizens are entitled to clarity in the law and should not have to rely upon abstract rights and guarantees.”

A conscientious objection clause explicitly enacting Ms Wall’s assurance is clearly required.  It is the norm, and indeed essential, to provide clarity for citizens. No law abiding citizen wants to risk falling foul of the anti-discrimination laws.

Are Christian ministers or imams unduly worried about gay couples requesting to be married by them contrary to the minister or imam’s beliefs?  What has happened overseas?  In Canada which enacted a conscientious objection clause regarding same sex marriage there has been litigation over the scope of the exemption.

Even a cursory search of the internet will also show that in other sectors such as education, performing civil union ceremonies, and letting of premises, there have been discrimination complaints laid against persons who have declined to provide services to same-sex couples on grounds of religious beliefs.  There is ample reason for otherwise law abiding citizens to be concerned in New Zealand if the bill is passed.

Louisa Wall’s assurance that her Bill will not “…require any person or church to carry out a marriage if it does not fit with the beliefs of the celebrant…” is now being questioned by legal experts.

All this uncertainty and potential for costly litigation simply highlights that there are both intended and unintended consequences of changing the definition of marriage, and the Marriage Act should simply be left as is.

It is perfectly possible to support traditional marriage, while also recognising and respecting the rights of others. There is no need to redefine marriage to provide legal recognition and protection for same-sex relationships.

In 2004, the government introduced Civil Unions and changed over 150 pieces of legislation to achieve this very thing.

During the Civil Union debate, politicians (including gay politicians) argued that the Civil Union Bill was an acceptable alternative, and that marriage should only be for heterosexuals. We agree.

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