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Marriage Act Amendment Bill – its legal effect on marriage celebrants who refuse to marry same-sex couples

August 30, 2012 by SPCS Leave a Comment

In a legal opinion issued to Family First NZ on 29 August 2012, Auckland Barrister Ian Bassett has confirmed his earlier legal opinion dated 27 August 2012 regarding the likely effect of Ms Louisa Wall’s Marriage (Definition of Marriage) Amendment Member’s Bill.

Following the release of his earlier opinion, he states on 29 August 2012

Re: Marriage Act Amendment Bill

I understand that questions have been raised as to whether a marriage celebrant solemnising a marriage is a person doing an act in the “performance of any public function, power or duty conferred or imposed on that person or body by or pursuant to law” within the meaning of s3(b) of the New Zealand Bill of Rights Act 1990 (“NZBORA”).

In consideration of that issue I refer to Ransfield v Radio Network Ltd [2005] 1 NZLR 233 at [69] (HC) where the Court identified a non-exhaustive list of indicators (copy extract attached). In the present context:

1. The marriage celebrant must be a person authorised by the State to be a marriage celebrant.

2. The marriage celebrant performs his or her function pursuant to statute (the Marriage Act 1955).

3. The solemnisation of marriage is preceded by a statutory declaration to the State by one of the persons intended to be married (refer s23 of the Marriage Act 1955).

4. A marriage licence is issued by the State (refer s24 of the Marriage Act 1955) authorising the marriage to be performed.

5. The marriage must be performed at the place specified in the licence (refer s31 of the Marriage Act 1955).

6. The words to be spoken by the couple to be married in the presence of the celebrant and witnesses are prescribed by statute (refer s31 of the Marriage Act 1955).

7. The form of documentation to be completed for the State by the celebrant, the couple and the witnesses are prescribed by law (Marriage (Forms) Regulations 1995). That documentation is to be returned to the State, duly executed and witnessed.

8. In the statutory context the celebrant can correctly be described as an agent of the State.

9. The resulting status of marriage upon solemnisation affects official status at law, including in relation to eligibility for state welfare and entitlements (i.e. such as superannuation etc), the status of children, parental responsibilities and inheritance laws.

It remains my view that a marriage celebrant solemnising a marriage is a person falling within s3(b) NZBORA.

Furthermore although no marriage celebrant can be forced to solemnise a marriage (in conflict with their beliefs or otherwise), nevertheless it will be unlawful for such a person (with a s3(b) NZBORA role) to refuse to solemnise a marriage on any prohibited grounds of discrimination (refer section 19 NZBORA, which refers in turn to the prohibited grounds set out in s21 of the Human Rights Act 1993).

Although section 29 of the Marriage Act 1955 provides that “A marriage licence shall authorise bu tnot oblige any marriage celebrant to solmnise the mariage to which it relates“, that is not an exemption in respect of the s19 NZBORA obligations.

I re-affirm my legal opinion dated 27 August 2012.

Yours faithfully

Ian C Bassett Barrister LL.B (Hons) (Auck), LL.M (Camb.), A.A.M.I.N.Z.

Download UPDATE to Legal Opinion (above)

Click to access Legal-Opinion-Marriage-Act-Update.pdf

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Filed Under: Marriage

Marriage bill to go to select commitee

August 30, 2012 by SPCS Leave a Comment

Marriage bill to go to select commitee. See:

http://www.stuff.co.nz/national/politics/7575391/Marriage-bill-to-go-to-select-commitee

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Filed Under: Marriage

Marriage Amendment Bill – Seventy church leaders oppose same-sex marriage bill

August 29, 2012 by SPCS Leave a Comment

In a media release issued on  Wednesday 29 August 2012 …

Seventy church leaders, including numerous national heads of major church denominations both Catholic and Protestant, are speaking up in a joint personal statement on the day of the first reading of the Marriage Amendment Bill, which would allow same-sex couples to marry.

 “We have made this joint statement”, said Rev. Dr Richard Waugh, “because members of Parliament need to be in no doubt what mainstream Christian views are on this matter.”

 Joint church leaders’ statement:

“This issue is not about equality but about the nature of marriage. All human beings are equal in the sight of both God and society, but not all relationships are the same. Marriage has uniquely been about the union of male and female. The State should not presume to re-engineer a basic human institution. The complementary role of male and female is basic to the very character of marriage, along with having and raising children. Same-sex relationships are intrinsically different, so can never be regarded as true marriage.

Parliament needs to take seriously that, for a very significant proportion of the New Zealand public, marriage is more than just a legal agreement or social contract, but has a  sacred character to it, and that many people – Christian and otherwise – feel very strongly that the nature of marriage should not be interfered with.

In 2004, the public was assured by the Prime Minister and other MPs that marriage would be respected as the union of a man and a woman, and that Civil Unions were a good and acceptable alternative, offering equivalent legal protections to marriage itself. It is now time for Members of Parliament to recall and honour those assurances.”

Signed by… 

–        Rev. Dr. Richard Waugh QSM (Wesleyan Methodist, National Superintendent)

–        Archbishop John Dew (Catholic)

–        Rev. Craig Vernall (Baptist, National Leader)

–        Bishop Patrick Dunn (Catholic)

–        Rev. Dr Merv Duffy SM (Catholic, Lecturer in the Theology of Marriage

–        Rev. Dr Stuart Lange (Presbyterian; Senior Lecturer, Laidlaw College) 

–        Rev. Mark Whitfield (Lutheran, President of Lutheran Church of New Zealand)

–        Rev. Max Scott (Anglican)

–        Bishop Denis Browne (Catholic)

–        Rev. James Lee (Presbyterian)

–        Rev. Dr Sarah Harris (Anglican, New Testament Lecturer, Carey Baptist College)

–        Rev. Peter Benzie (Wesleyan Methodist, National Secretary)

–        Mr Glyn Carpenter (Director, New Zealand Christian Network)

–        Rev. Fakaofo Kaio (Presbyterian, Moderator of Northern Presbytery)

–        Rev. Rhys Pearson (Presbyterian)

–        Rev. Illiafi Esera (Assemblies of God, Superintendent)

–        Pastor Eddie Tupa’i (President, North New Zealand Conference, Seventh-day Adventist  Church)

–        Rev. Steve Maina (Anglican, New Zealand Church Missionary Society) 

–        Rev. Ian Guy (Presbyterian)

–        Bishop Charles Drennan (Catholic)

–        Rev. Kim Francis (Presbyterian)

–        Rev. Murray Robertson (Baptist)

–        Pastor Lloyd Rankin (National Director, Vineyard Churches Aotearoa New Zealand)

–        Rev. Michael Hewat (Anglican)

–        Rev. Ian Hyslop (Presbyterian)

–         Rev. Nick Kirk (Anglican, Dean of Nelson Cathedral)

–        Pastor Ken Harrison (Harvest Christian Church Papakura, AOGNZ)

–        Rev. Steve Millward (Presbyterian)

–        Bishop Barry Jones (Catholic)

–        Rev. Brian Brandon (Presbyterian)

–        Rev. Andrew Carley (Anglican, Leader Latimer Fellowship)

–        Rev. Ben Dykman (Presbyterian)

–        Rev. Mike Hawke (Anglican)

–        Pastor Mike Griffiths (Elim, National Leader)

–        Bishop Colin Campbell (Catholic)

–        Captain Peter Lloyd (Anglican, former Director, Church Army New Zealand)

–        Rev. Dr Stuart Vogel (Presbyterian)

–        Rev. Dr Myk Habets (Head of Carey Graduate School, Carey Baptist College)

–        Rev. Eric Etwell (Anglican, Administrator of AFFIRM)

–        Pastor John Steele (National Leader, New Life Churches International)

–        Rev. Dr Mark Keown (Presbyterian; Senior Lecturer, Laidlaw College)

–        Mr Peter Eccles (Chairman, Auckland Congregational Union churches)

–        Rev. Dr Neville Bartle (National Superintendent, Church of the Nazarene)

–        Rev. Steve Jourdain (Presbyterian)

–        Pastor Peter Mortlock (Senior Pastor City Impact Church)

–        Rev. Lindsay Jones (Baptist)

–        Pastor Jerry Matthews (President, New Zealand Pacific Union Conference of the Seventh  Day Adventist Church)

–        Pastor Dr Brian Hughes (Calvary Chapel)

–        Rev. Emma Keown (Presbyterian)

–        Dr Rod Thompson (Principal, Laidlaw College)

–        Dr Laurie Guy (Baptist, Vice Principal, Carey College)

–        Rev. Dr Colin Marshall (Presbyterian)

–        Pastor Rasik Ranchord (New Life Churches International

–        Rev. Andrew Marshall (National Director, Alliance Churches of New Zealand)

–        Rev. Dr Martin Macaulay (Presbyterian)

–        Pastor Bruce Monk (National Leader, Equippers Church)

–        Rev. Charles Hewlett (Principal, Carey Baptist College)

–        Pastor Alan Vink (National Director,Willow Creek Association NZ)

–        Rev. Hung-Yi Pan (Wesleyan Methodist)

–        Rev. Tom Phillips (Presbyterian)

–        Rev. Stuart Crossan (Anglican)

–        Rev. Peter Dunn (Presbyterian)

–        Rev. Ruth Boswell (Wesleyan Methodist)

–        Rev. John Gullick (Presbyterian)

–        The Very Rev. Rob Yule (Presbyterian, Former Moderator)

–        National Leadership Team (Christian Churches New Zealand)

–        Rev. Toeaina Leiite Setefano (Presbyterian – PIC)

–        Rev. Stephen Woo Taek Nam (Presbyterian)

–        Rev. Dr Geoff New (Presbyterian) 

For further comment, contact:

Rev.  Dr Richard Waugh QSM

Email: rjw@wesleyan.org.nz

Ph 09 2716460

Or

Rev. Dr Stuart Lange

Email:  smlange@xtra.co.nz
Ph 09 8325775
021-0224-2957

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Filed Under: Announcement, Marriage Tagged With: Marriage Amendment Act Bill, same-sex marriage

“Marriage is created and ordained by God . . . as a unit between one man one woman to reflect the image of God.”

August 29, 2012 by SPCS Leave a Comment

Fairfax NZ News Report: Lobbyists gather before the vote tonight in Parliament on the Definition of Marriage Amendment Bill, that if passed into law, would allow “gay marriage”. The Bill is “sparking sharp political and moral division”……

Lobbyists about Parliament yesterday included a Korean delegation of pastors strongly against gay marriage.

Marriage is created and ordained by God . . . as a unit between one man and one woman to reflect the image of God,” the Rev Chang Bum Ko said.

He said he would return to Korea if the bill became law.

The pastors handed MPs a legal opinion by lawyer Ian Bassett, which was commissioned by the lobby group Family First [a charity registered with the Charities Commission].

Mr Bassett’s opinion suggested church ministers, marriage celebrants and even wedding photographers who withheld their services to same-sex couples on the grounds of a moral objection to gay marriage would be breaking the law if Ms Wall’s bill was adopted.

Another Labour MP, Damien O’Connor, broke ranks with most of his caucus colleagues yesterday, suggesting Parliament should be focused on “far bigger issues”

“We need to uphold marriage as a structure, as a construct around family life as a best intent,” Mr O’Connor said.

“There are far bigger issues in society, and the inequality across the board …  something everyone should be concerned about and that’s what we should be focusing on.”

Mr O’Connor will join fellow Labour MPs Su’a William Sio and Ross Robertson in voting against the bill led by their caucus colleague Louisa Wall.

Rallies both for and against Ms Wall’s Definition of Marriage Amendment Bill will turn out at Parliament today ahead of the first reading vote, which is expected late tonight.

Family First delivered a petition to Parliament that it said included 50,000 signatures against gay marriage. “Same-sex couples already have legal recognition through civil unions, so there is no need to redefine marriage,” its director, Bob McCoskrie, said.

For Full Story see: Lobbyists gather before marriage vote. Story by John Hartevelt. Fairfax NZ News

http://www.stuff.co.nz/national/politics/7566858/Lobbyists-gather-before-marriage-vote

Note: Section 2(c) of the Society’s Constitution states: The objects for which the Society is established include:

“To promote the benefits of lasting marriage, strong family life and wholesome personal values as the foundation for stable communities.”

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Filed Under: Marriage

Marriage Redefinition Bill ‘forces same-sex marriages on church’ – legal opinion

August 28, 2012 by SPCS Leave a Comment

Church ministers with a moral objection to gay marriage would be criminalised by refusing to wed same-sex couples if a new bill becomes law, a legal opinion states.

The view of Ian Bassett on Louisa Wall’s ”marriage equality” bill, commissioned by conservative lobby group Family First, was released today. It came as a petition against the bill signed by about 50,000 people was delivered to Parliament this afternoon.

The bill is expected to pass its first reading when it is debated at Parliament tomorrow.

Bassett’s opinion suggests church ministers, marriage celebrants and even wedding photographers who withheld their services to same-sex couples on the grounds of a moral objection to gay marriage would be breaking the law if Wall’s bill passed.

It rejects the view of the Human Rights Commission, issued late last week, which said religious ministers would still be allowed to refuse to marry anyone – including same-sex couples – if Wall’s bill passed.

The Human Rights Commission statement was ”legally incorrect,” Bassett said.

“If a marriage celebrant is available to exercise his or her statutory role, he or she cannot refuse to do so by reason of any prohibited ground of discrimination (ie. such as sexual orientation),” his opinion stated.

The practical effect of the bill, if enacted, would be that church ministers with moral objections to same sex marriage would likely “withdraw totally from the statutory role of marriage celebrant; withdraw totally from providing religious marriage ceremonies to the public; continue providing religious marriage ceremonies only to members of his or her own church”.

Also as a result of the bill, a church could not refuse to rent out its premises to its members for a same-sex wedding on the grounds of their sexuality.

Church ministers with moral objections to renting out church facilities for same sex marriage functions and who wanted to ”avoid the risk of being forced to do so,” would ”likely withdraw from making their church facilities available to any member of the public, including play-groups, senior citizen or other community groups”.

”The consequences for churches and communities would be significant,” Bassett’s opinion said.

However, Wall said pastors and church ministers would not be obliged to marry anyone if her bill passed.

“They will retain all the rights that they currently have. They choose who they marry, they choose what definition of marriage they have and so my bill isn’t going to affect them in any way,” Wall said.

“We should have an open and honest debate. What I don’t like is scaremongering and the fact that ministers are saying that they will have to go to jail. That’s not right in our country and it won’t happen. I will protect the rights of our ministers to define marriage as they see fit.”

Wall said she believed there was “a solid 60” of the necessary votes to pass her bill and “a few of the undecided will hopefully join our team”.

Family First director Bob McCoskrie said MPs should reject Wall’s bill and instead ”focus on more urgent issues”.

“If marriage is redefined once, there is nothing to stop it continuing to be redefined to allow polygamy, polyamory and adult incest relationships,” McCoskrie said.

”Throughout history and in virtually all human societies, marriage has always been the union of a man and a woman.”

Bassett’s opinion said the assurances of the Human Rights Commission of any MP were of “no legal effect” unless an exemption was provided for in the legislation.

Bassett has previously represented the anti-abortion group Right to Life in some of its legal fights.

Source: Bill ‘forces same-sex marriages on church’ – lawyer. By John Hartevelt

http://www.stuff.co.nz/national/politics/7563277/Bill-forces-same-sex-marriages-on-church-lawyer

Fairfax NZ News

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Filed Under: Marriage Tagged With: gay marriage, marriage celebrants, moral objections, same-sex couples

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