Religion and Equality

Law in Conflict

W. Cole Durham, Jr., Donlu D Thayer

• Publisher: Routledge
• Year: 2016
• eBook ISBN:
  9781317068075
• Topic: Theology & Religion
• Subtopic: Civil Rights in Law

This volume presents an analysis of controversial events and issues shaping a rapidly changing international legal, political, and social landscape. Leading scholars and experts in law, religious studies and international relations, thoughtfully consider issues and tensions arising in contemporary debates over religion and equality in many parts of the world. The book is in two parts. The first section focuses on the anti-discrimination dimension of religious freedom norms, examining the developing law on equality and human rights and how it operates at international and national levels. The second section provides a series of case studies exploring the contemporary issue of same-sex marriage and how it affects religious groups and believers. This collection will be of interest to academics and scholars of law, religious studies, political science, and sociology, as well as policymakers and legal practitioners.

Religion and Same-Sex Marriage

7
Same-Sex Marriage

Exemptions for Celebrants and Religious Freedom

Rex Ahdar*

Conscientious Objection to Same-Sex Marriage: Carving Exemptions

Same-sex marriage (SSM) has recently been legalized in several Western nations and is likely to become legal in others.¹ Where it has become legal, a recurrent issue has been the rights of those who usually conduct marriages to refuse to do so in the case of same-sex couples. Some religious ministers, clergy, marriage celebrants, commissioners, and registrars (hereafter collectively referred to as ‘celebrants’) may have a conscientious objection to conducting marriage ceremonies for people of the same sex. Their objection is usually grounded in sincere religious beliefs about the propriety of homosexual relationships.

This chapter considers the attempts to craft an exemption for such marriage celebrants based on solicitude for their religious convictions. My starting point is that no one ought to be forced to marry a couple against that person’s religious beliefs or conscience. Where the celebrant refuses for this reason to perform a marriage, he or she should be permitted by the state to refuse. Ideally, the law ought to make it clear that there is no legal obligation on celebrants in such circumstances to conduct SSMs. Likewise, the relevant antidiscrimination laws that prohibit discrimination on the grounds of sexual orientation ought to explicitly exempt from performing SSMs those celebrants who wish to be exempted, who should be immune from civil suit.

Yet carving out a suitable exemption has proved rather harder to achieve than one might expect. This, at least, has been the experience in nations such as New Zealand, Canada, and England and Wales. Other nations have also experienced teething troubles. In Denmark and Norway the state churches negotiated a path to allow objecting clergy to refuse to conduct SSM. But it is these three English-speaking countries that form the focus of this chapter.²

One of the key dividing lines in the case for exemptions is between religious marriage celebrants – that is the ministers, priests, pastors, rabbis, imams, and other religious leaders appointed by their church, synagogue, temple (or other religious body) – and state-employed marriage officials. The former receive much greater protection than the latter; indeed, religiously devout state or civil marriage celebrants are likely to receive no exemption at all.

This chapter does not consider the case for exemption for those who have a conscientious objection to participating in or being involved in the SSM event outside of the actual solemnization itself. Thus, caterers, photographers, musicians, florists, chauffeurs, those who hire out reception halls or rent bridal and honeymoon suites, and so on, remain a topic for further investigation.³

New Zealand

New Zealand became the thirteenth nation to legalize SSM when it passed the Marriage (Definition of Marriage) Act 2013 on 19 April 2013.⁴ The question of religious freedom for those church ministers and other marriage celebrants who did not wish to conduct SSMs featured prominently in the public debate.⁵ Critics of the Bill, such as the conservative lobby organization, Family First,⁶ the newly-formed Conservative Party⁷ and many Church leaders,⁸ as well as the New Zealand Law Society,⁹ voiced doubts about the adequacy of legal protection for celebrants with conscientious objections to conducting SSMs. The promoter of the Bill,¹⁰ Labour MP Louisa Wall, gave repeated assurances that the religious freedom of conscientious objectors would be respected. ‘Section 29 of the Marriage Act [1955] remains in place and makes it clear that once a marriage licence is obtained by a couple it does not oblige a minister or celebrant to marry that couple… Because we have freedom of religion in New Zealand, no religious body is bound to marry a couple if that marriage is at odds with its religious belief.’¹¹ The Select Committee that considered the Bill was well aware of the concern:

A large number of people and organizations have expressed their concern that, were this bill to pass, celebrants could not lawfully refuse to solemnise a marriage that would conflict with their religious beliefs… We accept the right of people to hold religious and cultural beliefs, and we make no attempt to dissuade people from holding them. It is our intention that the passage of this bill should not impact negatively upon people’s religious freedoms. The Marriage Act enables people to become legally married; it does not ascribe moral or religious values to marriage. The bill seeks to extend the legal right to marry to same-sex couples; it does not seek to interfere with people’s religious freedoms.¹²

Accordingly, the Committee wished ‘to clarify beyond doubt’¹³ that no marriage celebrant who was a minister of religion was obliged to solemnize a marriage if that would contravene the religious beliefs of the religious body to which he or she belonged. The exemption in its final form reads:

29. Licence authorizes but not obliges marriage celebrant to solemnise marriage

• (1) A marriage licence shall authorise but not oblige any marriage celebrant to solemnise the marriage to which it relates.
• (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 solemnise marriages by an approved organisation, is obliged to solemnise a marriage if solemnising that marriage would contravene the religious beliefs of the religious body or the religious beliefs or philosophical or humanitarian convictions of the approved organisation.

Despite the Committee’s hope that this version would provide the necessary clarity that the Ministry of Justice and Crown Law advisers sought, a flaw still remained. The problem, as I saw it,¹⁴ was that the exemption was not worded widely enough.

First, marriage celebrants who are independent, that is, not members of any of the listed religious bodies,¹⁵ or any approved organization,¹⁶ are not protected. Yet some 45 percent of marriages are conducted by these independent marriage celebrants (with 23 percent by registrars at a state registry office and 32 percent conducted by a church or approved organization marriage celebrant).¹⁷ Independent marriage celebrants are persons that the Registrar-General is satisfied ‘will conscientiously perform the duties of a marriage celebrant’ and ‘it is in the interests of the public generally, or of a particular community (whether defined by geography, interest, belief, or some other factor)’ that they be so appointed.¹⁸ Such persons may well have defined beliefs that generate a conscientious objection to SSM. For them, it is conceivable that they may find it difficult or impossible to ‘conscientiously perform’ a SSM. It was erroneous then, as Ian Bassett pointed out,¹⁹ for the Ministry of Justice to recommend that independent celebrants be excluded from the benefit of the conscientious objection exemption in s 29(2).²⁰ The Ministry’s response was that, in contrast to ministers of religion, independent celebrants (and registrars) are appointed by the government ‘to perform a public function, not to promote their own religious or personal beliefs’.²¹ (I shall respond to this reasoning in the section on Canada, below.)

Second, and perhaps even more importantly, ministers of religion of designated religious bodies may not be protected either. Religious ministers within tightly knit homogeneous denominations such as the Open Brethren, Seventh-day Adventists, or Elim (Pentecostal) Churches are not vulnerable. Rather, it is a religious minister whose more-heterogeneous denomination is divided on the issue of gay marriage that 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, and Anglican – have struggled to formulate a clear policy on this matter.²²

In the Presbyterian Church of Aotearoa New Zealand (PCANZ), the long-running battle over the ordination of gay clergy is a poignant reminder of how contentious matters of sexual practice and sexual orientation are.²³ The Presbyterians debated the issue of SSM at their 2012 General Assembly. There were ‘strong feelings’²⁴ on each side of the issue. Nonetheless, and over the dissent registered by some, the Assembly passed a resolution affirming that the Church ‘upheld the historic Christian understanding of marriage as the loving, faithful union of a man and a woman’.²⁵ The Assembly narrowly declined, however, to adopt a proposal that would have prohibited ministers from administering marriage ceremonies between same-sex couples. The motion to pass this no-SSM resolution failed by just one vote to achieve the necessary 60 percent threshold.

Louisa Wall, in her second reading speech on the SSM bill, noted this failure by the General Assembly and praised it as ‘a positive step’ that would allow a Presbyterian minister (such as the outspoken lesbian minister, the Reverend Margaret Mayman, at a central Wellington Presbyterian church) to marry a same-sex couple.²⁶ The Moderator of the PCANZ had, indeed, observed that if SSM was to be legalized, ‘ministers will have the flexibility to marry same-sex couples.’²⁷ The Moderator asked, two days before the right to conduct SSM came into force, for a temporary ban to preserve the Church’s ‘peace and unity’.²⁸

Other denominations have yet to grasp the nettle. The Anglican Church announced that its ministers could not conduct same-sex weddings pending a report from a commission chaired by the former Governor-General, Sir Anand Satyanand, at its General Synod in Paihia in May 2014.²⁹ The Synod passed a resolution that would ‘create a pathway towards the blessing of same-gender relationships, while upholding the traditional doctrine of marriages’.³⁰

Meanwhile, a conservative Anglican minister who decl...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Notes on Contributors
• Series Introduction
• Foreword
• List of Abbreviations and Terms
• Introduction
• Religion and Anti-Discrimination Norms
• Religion and Same-Sex Marriage
• Conclusion
• Index