Thoughts: Redefinition of Marriage Bill Changes

gay-marriage-1200The New Zealand Marriage (Definition of Marriage) Amendment Bill has been reported back to parliament by the Select Committee for its Second Reading in a few weeks (perhaps mid-March 2013).

INDIVIDUALS EXEMPTED

A new section s29(2) says (my capitals and bold for emphasis),

“…no celebrant  who is a minister of religion recognised by a religious body…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.” 

This would seem to exempt any individual (duly approved to be a celebrant, because you have to be nominated by an approved group or community or organization) from conducting a same-sex marriage, if that was in conflict with personal moral, religious or cultural sensitivities. The rider being OF THE ORGANISATION for which the celebrant sought support to be a celebrant.

What about Exemptions at Work, as Officers of the State? 

I wonder how this might affect employment related disputes however, where an officer of the state finds themselves in conflict with being forced to acknowledge a same-sex marriage within other bureaucratic contexts? They can personally hold it is not valid, say publicly it is not valid, but are they allowed to transfer that conscience to their action as an officer?  Could get interesting and has overseas.

GAY ADOPTION

The bill makes it clear that gay couples who marry are now able to adopt.  They can now, but not on the basis of their sexuality (which is not a criteria, they just happen also to be gay, and some gay people are also in heterosexual marriages). Many New Zealanders are not aware of this huge change.  Providing children with balanced gender role models in parenting (ie male and female parents) has been a core argument against the bill.

ALLOWED TO SAY SOME MARRIAGES ARE INVALID

The amendments suggest a repeals of s56 which previously made it an offence to deny the validity of a marriage. This is good, as it removes any legal censure against people suggesting a gay marriage (for example) is not valid, for which many religious people it is not (“before God”).  You cannot compel them to believe otherwise.  So, the bill exempts people of conscience who are perfectly at liberty to say a same-sex marriage is not valid according to their religious, cultural or other beliefs. Muslims, for example, may not consider a cross-religious marriage valid, either.  They are allowed to believe, and say, that.

The Select Committee here seem to have really taken on board several concerns raised by several submitters.

no-sex-marriageFURTHER CONCERNS

Family First NZ said yesterday today, that “the proposed…amendments…will not protect…marriage celebrants who are not part of approved mainline churches or approved organisations will not be lawfully able to refuse a request to marry a same-sex couple by reason of the same-sex of the couple.”

I’m not sure that is correct, see above s29(2). 

FFNZ: “The Select Committee acknowledges in its own report (pg 4) that the proposed exemption will only apply to 1/3’rd of all marriages (22,000 p.a.) conducted in New Zealand as only 32% of marriages are conducted by a church or organisational marriage celebrant. The balance of 68% (15,000) are conducted in a registry office by a registrar or an independent marriage celebrant.”

This is itself not really an issue, the percentages reflect the number of potential celebrants who are happy to conduct same-sex marriages.  Others are exempt if they simply disagree and their celebrant nominee organization does also.

FFNZ again, “…the personal conviction or beliefs of celebrants from approved organisations will not be protected unless the organisation holds the same view.”

This is technically correct, although I think it highly unlikely a claim would be brought against an individual on the subtleties between “personal conviction” and stated “values of the organization” supporting them as a celebrant.  The spirit of the bill is to protect individuals of conscience and that is clear in the Select Committee changes to the bill.

FFNZ: “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.”

I think that unlikely.  The only case technically would be, a celebrant who disagreed personally, but the organisation under which they hold their license, did, and they refused.  It’s a subtle difference, but does exist in the bill as it stands. It could get murky where you have ‘rainbow congregations,’ essentially groups of gay people and other liberals who market themselves as a traditional church denomination. Does a celebrant hold a license in the name of the denomination or the local autonomous congregation?

A court would uphold the wider spirit of the law, not the feasible ‘between-the-cracks’ absence of words, to compel an individual. A celebrant who declines doesn’t have to state why, so it would be beholden on the couple to establish proof, and the nuances between “personal” and “organizational values” etc. I suspect that is counter productive and myopic although technically feasible (as being prosecuted for jay walking is) based on a very legal interpretation.

“An earlier legal opinion Family First received said that ‘churches supplying services to the public will be in breach of the Human Rights Act 1993, if they refuse to supply services to a couple seeking to be married, by reason of the same sex of the couple’. 

This is interesting.  If the Redefinition of Marriage Bill is passed, which has precedence?  The exemptions under the new Act or the older Humans Rights Act? There could be legal contradictions here. A test case could emerge. The US is facing exactly this issue in NM, where an appeal is being heard by the Supreme Court against the New Mexico Human Rights Commission and the right of citizens found ‘guilty’ of “sexual orientation” discrimination by virtue of their religious beliefs (which are protected under the American Constitution).

Blog readers should note, that the Select Committee is simply recommending various changes to make the bill better as a possible Act.  It is the Parliament after the Second and Third Readings on the wider merits or otherwise, that will decide if we should actually redefine marriage in law. They may not.  Currently only 47% of New Zealanders agree.  A majority think it should be put to a binding referendum.

My own view regardless of whether this passes or is voted down (as in Australia) is that this is a moral issue and changing the law will simply create different tiers (and tears) of marriage in NZ that citizens do, or do not, support. I consider this divisive and terrible law as it deeply divides the community. Earlier I wrote (see Y Gay-Marriage Bill Scares NZ Churches),

“Wall’s bill will confuse marriage (and divide the community) by creating several ‘classes’ of marriage:

  1. Legal Civil Unions (not marriages).
  2. Legal traditional church/other religious/cultural marriages recognised by the State.
  3. Legal same-sex marriages recognised by the State but unrecognised culturally by churches & some cultures.

This is a very serious division, as it puts groups within the community at odds with each other under law.  It will place churches and Christian leaders (such as principals of church schools and charitable community organizations) in awkward positions; while honouring their long-held values and special school ethos, they will be placed at variance with the law.  The US Scouts organization, for example, has come under intense pressure to change their organizational criteria to admit openly homosexual people as troop leaders, a decision they have rejected after a careful two-year review as inconsistent with their Christian foundations.

I still believe this to be the case and an inherent weakness of this bill.

See this related post from last year 20 Reasons Redefining Marriage is a Mistake.  I will be posting more on this over the next few weeks, specifically giving new compelling reasons why I think this is so.

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About coNZervative

A blog about politics, life, culture, literature, music and thought from Christchurch, New Zealand [NZ] (the home of 10,000 earthquakes since 4 Sept. 2010) built because of the bullying and cajoling of Liberal opinion-makers (journalism and Hollywood) against conservative-minded people who are as entitled to opinion and a perspective as anyone; and because Conservativism has served the world well. John Stringer is a New Zealander (Christchurch) in his 40s married to an American from Taco Bell; they have 5 adult children in 3 diff. countries. John is an ex-Anglican pastor, a teacher, published author (NZ), novelist (USA) and cartoonist (Aust, NZ), and has spent the last 25 years in NZ politics with the National party (he was a parliamentary candidate in 1999). There was a stint in London working for the British Conservative party as well, where he did media minding and campaign work with several Brit cabinet ministers, including Baroness Thatcher, Baroness Blatch, Michael Howard, Tom King, among others. He has an MA (classical studies, Victoria); is a graduate of the New York Film Academy; and has various awards for writing. His passions include British bulldogs, fly fishing, and history (Ancient and WWII). Winston Churchill was mainly a “Conservative” but also a “Liberal” MP between 1900-1964. A Member of Parliament for 64 years, he contested 21 parliamentary elections (for Oldham, Manchester North West, Dundee, and Epping/Woodford). Throughout his career Churchill stood for liberty. He believed in open debate and freedom of speech, and opposed any system or ideology that tried to dictate the way one should think. Churchill felt deeply that disagreements within the democratic system should not degenerate into personal animosities. RIDER: This site is not connected to nzconservative, a Catholic site, or NZ Conservative Party, although from time-to-time I share some of the views espoused by both groups and other sites I follow, as published; I am an independent thinker and blogger.
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