By Max Harris –
On 17 April, the New Zealand Parliament passed the Marriage (Definition of Marriage) Amendment Act 2013 following a powerful nationwide campaign—led by the Campaign for Marriage Equality, Legalise Love, and others. The Act received Royal Assent from the Governor-General (the standard procedure for legislation in New Zealand) on 19 April and will come into force four months later, making gay, bisexual, lesbian, transsexual and intersex marriages possible in New Zealand from 19 August 2013.
New Zealand became the 13th country in the world and the first in Asia-Pacific to make same-sex marriages legal, which has not only received widespread news coverage but has also provided a spur to other countries considering the issue (including France).
The Marriage (Definition of Marriage) Amendment Act (available online) is fairly simple; it amends the Marriage Act 1955 to clarify that marriage means the “union of 2 people, regardless of their sex, sexual orientation, or gender identity”. The effect of the associated amendments is, inter alia, that GBLTI couples will now be able to adopt children in New Zealand. In addition, the amending Act allows an exemption for ministers of religion and marriage celebrants in the following terms:
… 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.
Schedule 1 lists Baptists, Anglicans, Congregational Independents, the Greek Orthodox Church, “All Hebrew Congregations”, Lutherans, Methodists, Presbyterians, Catholics, and the Salvation Army as the relevant enumerated religious bodies.
The Act has been welcomed by rights activists and many others as an important advance in the achievement of equality for GBLTI. However, it also raises a key legal point that is worthy of further examination by human rights scholars and practitioners alike.
As other countries forge ahead with similar legislation, the nature of the religious exemption provision needs to be closely scrutinised. The exemption may end up coming before the courts in New Zealand. Important questions include: what does it mean for “the religious beliefs of the religious body” to be contravened? If this requirement is interpreted objectively, how are “religious beliefs” (supposedly militating away from recognition of same-sex marriage) to be ascertained by a court? And if the test isn’t solely objective, how will a court give weight to a celebrant or minister’s own conception of their religious body’s beliefs? No doubt assistance will be garnered here from how analogous issues have been dealt with in other jurisdictions.
The question must also be asked: is such an exemption even justified? Given that civil rights legislation has not traditionally allowed opt-out clauses for those maintaining racist views, should marriage equality legislation allow the denial of rights to marriage on the grounds of religious freedom? The New Zealand Bill of Rights Act 1990 (legislation that was drawn upon in the development of the UK’s Human Rights Act 1998) protects both freedom of religion and non-discrimination—although, interestingly, there is no freestanding right to equality in the Act. One possibility is that if New Zealand courts are unpersuaded by religious freedoms concerns, they may seek to read down the scope of the exemption, using s 6 of the Bill of Rights (which is similar in form to the UK Human Rights Act’s s 3).
These questions cannot be canvassed in full here. What is clear is that in this moment of celebration, the New Zealand marriage equality legislation should also prompt further thought about the ideal form of laws dealing with this delicate and important human rights issue.
Max is a BCL candidate at Balliol College, University of Oxford and is a former co-chair of the JustSpeak Steering Group.