Family First NZ Media Release 8 March 2013:
A Legal Opinion obtained by Family First NZ from Barrister Ian Bassett has
labeled the conscientious exemption proposed by the Select Committee Report on
the same-sex marriage bill as ‘unprincipled and wrong’, ‘misguided’,
‘unjustifiably discriminatory’, and ‘based upon flawed legal advice’.
“The Report of the Government Administration Select Committee states: ‘It is our
intention that the passage of this bill should not impact negatively upon
people’s religious freedoms… The bill seeks to extend the legal right to
marry to same-sex couples; it does not seek to interfere with people’s
religious freedoms.’ Yet the Legal Opinion clearly explains that ‘the advice of
the Crown Law Office and the Ministry of Justice and the resultant
recommendation of the Select Committee will interfere with people’s rights to
act according to their beliefs and conscience'”, says Bob McCoskrie, National
Director of Family First NZ.
“Mr Bassett highlights that only 32% of marriages conducted in New Zealand will
be conducted by celebrants who may have the benefit of the religious
conscientious exemption in the proposed s5A put forward by the Select
Committee, and says that ‘the narrowness of the conscientious exemption
provided by the proposed s5A seriously undercuts the assurances given by MP
Louisa Wall to Parliament’ during the 1st Reading and that ‘If the Bill is
enacted as recommended by the Select Committee report, then celebrants who do
not have the benefit of the proposed s5A will not be able lawfully to refuse to
perform a marriage by reason of the same sex of the couple and will be subject
thereby to coercion by the State to act contrary to their religious beliefs and
conscience. Such coercion by the State is contrary to ss13 and 15 of the New
Zealand Bill of Rights Act 1990’.”
The Legal Opinion also says the Select Committee, by rejecting advice from Crown
Law, considers it to be appropriate that it be unlawful for churches, temples,
mosques, synagogues and other places of worship to refuse to host same-sex
‘marriages’ if the building is normally made available to the public.
Crown Law’s letter of advice to the Select Committee dated 21 November 2013
stated: “Therefore if Parliament intends that religious congregations not be
required to permit their place of worship to be used for the solemnisation of
same sex marriages contrary to their religious beliefs, we recommend that this
be made explicit in the legislation to the put the issue beyond doubt.”
“Ian Bassett warns that ‘there will also be an associated practical problem if
the approved religious body or organisation is split on the issue of same sex
marriage or refuses to adopt an official position on the issue’. This may be
significant for ministers and celebrants associated with the Methodist and
Anglican denominations who are currently debating the issue,” says Mr
McCoskrie.
Marriage registrars are also at risk. Mr Bassett says ‘there may be persons in
New Zealand who became marriage registrars at a time when same sex marriages
were not in contemplation and who (unless there is an exemption) will be forced
against their conscience to officiate at same sex marriages or else face
dismissal from their employment.’
“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, despite
the politicians promising otherwise,” says Mr McCoskrie.
“Despite all the hype and sales pitch, this Bill has failed to deliver what was
promised, and politicians should vote against it.”
SUMMARY of Legal Opinion
If the Bill was enacted incorporating the s5A recommendations of the Select
Committee then:
Q1: Will marriage celebrants, marriage registrars and ministers of religion (who
are also marriage celebrants) be forced to solemnise same-sex ‘marriages’ even
if to do so would be contrary to the religious beliefs of the marriage
celebrants, marriage registrars and ministers of religion?
PROTECTED
(a) A marriage celebrant (who is a minister of religion recognised by a
religious body enumerated in Schedule 1) or a celebrant (who is a person
nominated to solemnise marriages by an approved organisation) will be able
lawfully to refuse to solemnise 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.
NOT PROTECTED
(b) A marriage celebrant (who is a minister of religion recognised by a
religious body enumerated in Schedule 1) or a celebrant (who is a person
nominated to solemnise marriages by an approved organisation) will not be able
lawfully to refuse to solemnise a marriage if the religious body or the
approved organisation endorsed same sex marriage.
UNCLEAR
(c) It is unclear what will be the position of a marriage celebrant (who is a
minister of religion recognised by a religious body enumerated in Schedule 1)
or a celebrant (who is a person nominated to solemnise marriages by an approved
organisation), where the approved religious body or organisation is split on
the issue of same sex marriage or refuses to adopt an official position on the
issue.
NOT PROTECTED
(d) (i) Independent marriage celebrants (ie who are not celebrants within (a)
above) will not lawfully be able to refuse to solemnise a same sex marriage
even if solemnising that marriage would contravene their religious beliefs or
conscience.
(ii) Marriage registrars will not lawfully be able to refuse to solemnise a same
sex marriage even if solemnising that marriage would contravene their religious
beliefs or conscience.
Q2: Will temples, mosques, synagogues, churches and other places of worship be
required to be used to solemnise same-sex ‘marriages’?
NOT PROTECTED
(e) Church ministers, marriage celebrants, church elders (or persons or entity)
supplying their churches (or temples or mosques or synagogues) to the public
will be in breach of the Human Rights Act 1993 and acting unlawfully, if they
refuse to supply their churches to a couple seeking to be married, by reason of
the same sex of the couple..
READ FULL OPINION
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