Fears a proposed law will force clergy to marry same-sex
couples are wrong, writes Andrew Geddis.
Parliament's Government Administration Committee currently is
hearing submissions on the proposed law to permit same-sex
couples to marry.
During these hearings, some religious groups have expressed
concern the Bill will force them to conduct marriage
ceremonies for same-sex couples. This is despite the Human
Rights Commission saying it will do no such thing, and the
Bill's author saying the Bill is not meant to do so.
However, the New Zealand Law Society, in its submission to
the committee, has now thrown its weight behind these
religious groups' fears. It then suggests that the Bill be
amended to make it clear this outcome is not intended.
If that change really is needed, then so be it. But I think
the Law Society is wrong and the Bill as it stands would not
require anything new of any religious group.
To explain why, I first need to say something about how the
Marriage Act 1955 works. Any couple wanting to marry must get
a licence from a registrar, who is a government employee. In
order to do so, they simply need to meet the general
statutory rules on who can marry (such as age, not already
being married, etc).
Then, once that couple has a licence, they must actually get
married. A registrar can do this, but so can a "marriage
Certain religious groups recognised under the Marriage Act
may then effectively appoint their own marriage celebrants.
So provided a couple has their licence, these religious
groups can conduct the formalities needed to legally marry
that couple according to their own doctrinal beliefs.
In this way, the Marriage Act recognises a division between
the State and individual religious groups. The State licences
everyone to wed, and actually marries those couples who
prefer to do so before a registrar.
However, religious groups also may marry any couples they
choose to, according to the dictates of their beliefs.
And this division is made clear in section 29 of the Marriage
Act, which states a marriage celebrant can marry someone once
they have obtained a marriage licence, but does not have to
Why, then, are some religious groups worried they may be
required to conduct same-sex marriages if this Bill passes?
Well, since 1955 our law has developed in what may be called
a "pro-rights" fashion.
In particular, the passage of the Human Rights Act 1993 has
made it unlawful to discriminate against people in certain
areas of life on the basis of "prohibited grounds of
discrimination". One of these grounds is sexual orientation.
So the fear is that if same-sex couples gain the legal right
to marry, then the Human Rights Act may deem a religious
group's refusal to actually marry them to be unlawful.
I think that this fear is misplaced, for three reasons.
First of all, there are rights on both sides of the argument
Religious groups also enjoy the guaranteed right to hold and
manifest their beliefs, including their beliefs about who
should and should not be married.
So forcing a religious group to perform a marriage that
conflicts with their beliefs would breach their rights.
Meaning that there needs to be some balancing between the
respective rights of religious groups and same-sex couples.
Second, that balancing between rights must take place within
the structure of the Marriage Act, which is the governing
law. And, as I have explained, this legislation deliberately
distinguishes between the civil requirements for marriage and
religious beliefs about it.
The former are the responsibility of the State, which sets
general restrictions on who may get married and marries those
couples that wish to have a purely civil ceremony. The latter
are the responsibility of the individual religious groups
that appoint marriage celebrants and conduct the appropriate
So any claim that says if the State lets a couple marry then
a religious group must actually marry them is completely at
odds with the entire approach of the Marriage Act. Finally,
while religious groups may be focused on the perceived threat
same-sex marriage poses to their beliefs, the consequences of
their (and the Law Society's) arguments actually are much
If it would be unlawful for religious groups to refuse to
marry a couple based on one of the Human Rights Act
prohibited grounds of discrimination, then it is unlawful for
them to do so based on any of them. And the prohibited groups
of discrimination include things like marital status,
religious belief and ethical belief.
That would mean that the Catholic Church is acting unlawfully
by refusing to marry divorced people. Doing so is a form of
discrimination based on marital status.
And it would mean that an Imam who refuses to marry a
Christian couple is acting unlawfully. That is discrimination
based on religious belief.
In fact, any conceivable reason a religious group might have
for refusing to marry any couple at all would most likely be
unlawful as it would involve a prohibited ground of
This is a clearly absurd conclusion. And while the law may
sometimes seem to be a bit silly, a legal argument that
produces such an absurd conclusion is usually wrong.
So here is my message to any religious group that believes it
might one day be forced to marry same-sex couples. If this is
true, then you already have a far, far bigger problem on your
Prof Geddis teaches and researches at the University of
Otago law faculty.