Gay Marriage Exemption ‘Unprincipled’, ‘Discriminatory’ – Legal Opinion

Media Release 8 March 2013
A Legal Opinion obtained by Family First NZ from Barrister Ian Bassett has labeled the conscientious exemption proposed by the Select Committee Report on the same-sex marriage bill as ‘unprincipled and wrong’, ‘misguided’, ‘unjustifiably discriminatory’, and ‘based upon flawed legal advice’.

“The Report of the Government Administration Select Committee states: ‘It is our intention that the passage of this bill should not impact negatively upon people’s religious freedoms… 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.’ Yet the Legal Opinion clearly explains that ‘the advice of the Crown Law Office and the Ministry of Justice and the resultant recommendation of the Select Committee will interfere with people’s rights to act according to their beliefs and conscience’”, says Bob McCoskrie, National Director of Family First NZ.

“Mr Bassett 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 proposed s5A put forward by the Select Committee, and says that ‘the narrowness of the conscientious exemption provided by the proposed s5A seriously undercuts the assurances given by MP Louisa Wall to Parliament’ during the 1st Reading and that ‘If the Bill is enacted as recommended by the Select Committee report, then celebrants who do not have the benefit of the proposed s5A 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 Opinion also says the Select Committee, by rejecting advice from Crown Law, considers it to be appropriate that it be unlawful for churches, temples, mosques, synagogues and other places of worship to refuse to host same-sex ‘marriages’ if the building is normally made available to the public.

Crown Law’s letter of advice to the Select Committee dated 21 November 2012 stated: “Therefore if Parliament intends that religious congregations not be required to permit their place of worship to be used for the solemnisation of same sex marriages contrary to their religious beliefs, we recommend that this be made explicit in the legislation to the put the issue beyond doubt.”

“Ian Bassett warns 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 the Methodist and Anglican denominations who are currently debating the issue,” says Mr McCoskrie.

Marriage registrars are also at risk. Mr Bassett says ‘there may be persons in New Zealand who became marriage registrars at a time when same sex marriages were not in contemplation and who (unless there is an exemption) will be forced against their conscience to officiate at same sex marriages or else face dismissal from their employment.’

“This Bill will provide a culture of coercion whereby celebrants or registrars 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.

“Despite all the hype and sales pitch, this Bill has failed to deliver what was promised, and politicians should vote against it.”

 

SUMMARY of Legal Opinion

If the Bill was enacted incorporating the s5A recommendations of the Select Committee then:

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 refuses 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.

 

Q2: Will temples, mosques, synagogues, churches and other places of worship be required to be used to solemnise same-sex ‘marriages’?

NOT PROTECTED
(e) Church ministers, marriage celebrants, church elders (or persons or entity) supplying their churches (or temples or 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 churches to a couple seeking to be married, by reason of the same sex of the couple.

READ FULL OPINION

ENDS