Media Release 30 May 2013
Family First NZ says that information being sent to marriage celebrants by the Department of Internal Affairs about the new marriage laws does not clearly state the correct legal position.
The email from the Registrar-General of Births, Deaths and Marriages to all marriage celebrants this week refers celebrants to a Questions and Answers Link on the Department of Internal Affairs (DIA) website which says:
Can a celebrant or church minister refuse to marry a same sex couple?
The Marriage Act authorises but does not oblige any marriage celebrant to solemnise a marriage. This is unchanged by the Marriage Amendment Act. However this is further reinforced by the Amendment Act which states that no religious or organisational celebrant is obliged to solemnise a marriage that would contravene religious beliefs or philosophical or humanitarian convictions of a religious body or approved organisation.
“The DIA answer correctly states that the Marriage Act authorises, but does not oblige any marriage celebrant to solemnise a marriage, but the DIA fails to mention that pursuant to the NZ Bill of Rights Act 1990, no marriage celebrant may lawfully refuse to solemnise a marriage by reason of the same sex of the couple, unless the religious conscientious exemption in the Marriage Amendment Act 2013 applies,” says Bob McCoskrie, National Director of Family First NZ.
The legal advice obtained by Family First highlights that only 32% of marriages conducted in New Zealand will be conducted by celebrants who may have the benefit of the religious conscientious exemption in the amendment passed by Parliament, and says that ‘the narrowness of the conscientious exemption provided … seriously undercuts the assurances given by MP Louisa Wall to Parliament’ during the 1st Reading.
The legal advice obtained by Family First says that ”celebrants who do not have the benefit of the [exemption] will not be able lawfully to refuse to perform a marriage by reason of the same sex of the couple and will be subject thereby to coercion by the State to act contrary to their religious beliefs and conscience. Such coercion by the State is contrary to ss13 and 15 of the New Zealand Bill of Rights Act 1990’.”
The legal advice obtained by Family First also warned that ‘there will also be an associated practical problem if the approved religious body or organisation is split on the issue of same sex marriage or refuses to adopt an official position on the issue’. This may be significant for ministers and celebrants associated with, for example, the Methodist and Anglican denominations who are currently debating the issue,” says Mr McCoskrie.
“Ironically, the Department of Internal Affairs says that ‘bride’ and ‘groom’ are expected to remain on marriage forms – despite final approval having to come from Cabinet, and initial proposals excluding the terms ‘bride’ and ‘groom’.”
“This new law will provide a culture of coercion whereby celebrants that don’t fall within the exemptions will not be lawfully able to refuse to perform a same-sex marriage by reason of the same-sex of the couple, despite the politicians promising otherwise,” says Mr McCoskrie. “The advice being given to celebrants is failing to highlight that.”
SUMMARY of Legal Opinion
Q1: Will marriage celebrants, marriage registrars and ministers of religion (who are also marriage celebrants) be forced to solemnise same-sex ‘marriages’ even if to do so would be contrary to the religious beliefs of the marriage celebrants, marriage registrars and ministers of religion?
PROTECTED
(a) A marriage celebrant (who is a minister of religion recognised by a religious body enumerated in Schedule 1) or a celebrant (who is a person nominated to solemnise marriages by an approved organisation) will be able lawfully to refuse to solemnise 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.
NOT PROTECTED
(b) A marriage celebrant (who is a minister of religion recognised by a religious body enumerated in Schedule 1) or a celebrant (who is a person nominated to solemnise marriages by an approved organisation) will not be able lawfully to refuse to solemnise a marriage if the religious body or the approved organisation endorsed same sex marriage.
UNCLEAR
(c) It is unclear what will be the position of a marriage celebrant (who is a minister of religion recognised by a religious body enumerated in Schedule 1) or a celebrant (who is a person nominated to solemnise marriages by an approved organisation), where the approved religious body or organisation is split on the issue of same sex marriage, or fails to or is unable to adopt an official position on the issue.
NOT PROTECTED
(d) (i) Independent marriage celebrants (ie who are not celebrants within (a) above) will not lawfully be able to refuse to solemnise a same sex marriage even if solemnising that marriage would contravene their religious beliefs or conscience.
(ii) Marriage registrars will not lawfully be able to refuse to solemnise a same sex marriage even if solemnising that marriage would contravene their religious beliefs or conscience.
ENDS
