The Select Committee here seem to have really taken on board several concerns raised by several submitters.
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).
- See here for more on that (New Mexica case).
- And for related reading re NZ (Can Churches Legally Discriminate Against Gays?)
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:
- Legal Civil Unions (not marriages).
- Legal traditional church/other religious/cultural marriages recognised by the State.
- 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.