Barrister Ian Bassett has given another opinion describing the risks to freedom of religion and belief of Louisa Wall’s Marriage Amendment Act Bill if it is enacted in its presently proposed form, which would include this amendment:
“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 solemnize marriages by an approved organisation, is obliged to solemnize 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.”
It is clear that any marriage celebrant exercising their public function who is not covered by the amendment risks being in breach of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 if they refuse to perform their public function as marriage celebrants because it is a same sex couple seeking to be married.
Church ministers, marriage celebrants, court registrars, church elders, leaders, photographers and caterers and any other person or entity supplying services to the public risks being in breach of the Human Rights Act 1993 if they refuse to supply services to a couple seeking to be married because the couple are same sex. For some this could also mean risking their employment.
Service providers to the public risk being in breach of the Human Rights Act 1993 if they refuse to supply services to a married couple because the couple are same sex.
The New Zealand Law Society’s Law Reform Committee headed by Professor Paul Rishworth LLB (Hons) M Jur highlighted the risk to freedom of religion and belief in the Bill in its submission to Parliament:
“The proposer of the Bill said that the Bill was not intended to compel marriage celebrants to perform marriages contrary to their religious beliefs. However, in the Law Society’s view, Professor Rishworth says it is arguable that marriage celebrants who refuse to perform same-sex marriages will be acting unlawfully under the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990, or both.
“We want to highlight arguable conclusions which seem to be at odds with the settled intentions of the Bill’s drafters. Whatever the position, the Law Society believes it makes sense to put the matter beyond doubt,” Professor Rishworth says.
The only thing that the amended Bill puts beyond doubt is that the critics of those raising fears about the Bill’s threat to freedom of religion and belief were wrong. By recommending an amendment the Select Committee are agreeing that a risk existed, as the likes of Ian Bassett, Grant Illingworth have argued, contra to The Human Rights Commission’s claim that all “…religious officials and leaders are free to refuse to perform marriages that are not in accordance with their religious beliefs.”
Bassett, Illingworth and Rishworth are not alone with their concerns among the legal fraternity.
Graeme Edgeler, a Wellington Barrister has been quoted in the Herald saying:
… if an independent celebrant declined to marry a same-sex couple, the couple could then complain to the Human Rights Commission.
“It’s not about [celebrants] being forced, it’s about people getting in trouble afterwards if they didn’t,” he told APNZ.
“They’re not breaking any rule in the Marriage Act, but rules in other acts. The main one would be the Human Rights Act, which says you can’t discriminate on the basis on sexual orientation or gender.”
Auckland Barrister Rachel Wong has raised issues against the Bill.
This blog’s Madeleine Flannagan LLB, Associate Barrister and Solicitor at Coast Legal, adds her voice:
“The Bill, in its present form, fails to protect individual freedom of religion and belief (belief being a comprehensive viewpoint not based on religion). The proposed amendment only protects group religious rights, which is little protection at all for most religious celebrants as few denominations hold formal views on marriage, many practitioners of religion do not belong to a group and for those that do they might hold a different personal view on this topic to the group view. The amendment then fails to protect the religious freedom of most religious celebrants just as it utterly fails to protect the freedom of belief of non-religious celebrants who have no group to appeal to to protect their freedom.”
Ian Bassett’s latest opinion thoroughly analyses the legal effects of the amended Bill, a summary as to whose freedom of religion and belief it protects and whose it does not follows:
Protected
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
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.
Independent marriage celebrants 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.
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.
Church ministers, marriage celebrants, church elders supplying their churches, temples, mosques or synagogues to the public will be in breach of the Human Rights Act 1993 and acting unlawfully. If they refuse to supply their buildings to a couple seeking to be married because the couple are a same sex couple.
Unclear
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 refuses to adopt an official position on the issue.
The amendment does not protect the rights to religious freedom or belief of any individual person, celebrant or minister. Rather it only protects the rights of various State-recognised religious groups. Bassett points out:
Bassett adds further:
Yesterday several church leaders called for the government to amend the Bill to to prevent discrimination against any teacher or other person who believes that marriage should only be between a man and a woman. Christian Network director Glyn Carpenter is cited as stating:
“People should not be denied employment, they should not be denied promotion, and should not be dismissed from employment for refusing to go along with the new definition of marriage”.
Some teachers worried they could face accusations of discrimination if they did not teach that all marriages were equal.
The Rev Stuart Lange of the Presbyterian Affirm movement said the change was needed to stop the Government from fixing funding criteria that discriminated against religious-based social service agencies that did not support gay marriage.”
No MP is yet to be found willing to move such an amendment. After months of MP Louisa Wall, whose qualifications according to Wikipedia are “netball player and rugby union player“, assuring the New Zealand public this Bill was never intended to violate religious freedom or belief, it was not going to, that those who said it did were “fear mongers” the question needs to be asked why won’t they amend the Bill to protect freedom of religion and belief?
Ian Bassett, Grant Illingworth, Paul Rishworth, the Law Society, Graeme Edgeler, Rachael Wong and myself are hardly “fear mongers”. We are members of a profession who are qualified to make the statements we do.
Download Ian Bassett’s Legal Opinion of 6 March 2013
Download Ian Bassett’s Legal Opinion of 19 November 2012
Download Ian Bassett’s Legal Opinion of 27 August 2012
Download UPDATE to Legal Opinion of 29 August 2012