56 Offence to deny or impugn validity of lawful marriage
(1) Every person commits an offence against this Act, and shall be liable on summary conviction to a fine not exceeding 100 pounds, who—
(a) alleges, expressly or by implication, that any persons lawfully married are not truly and sufficiently married; or
(b) alleges, expressly or by implication, that the issue of any lawful marriage is illegitimate or born out of true wedlock.
(2) For the purposes of this section the term alleges means making any verbal statement, or publishing or issuing any printed or written statement, or in any manner authorizing the making of any verbal statement, or in any manner authorizing or being party to the publication or issue of any printed or written statement.
(3) A person shall not be deemed to make an allegation contrary to the provisions of this section by reason only of using in the solemnization of a marriage a form of marriage service which at the commencement of this Act was in use by the religious body to which that person belongs, or by reason only of the printing or issue of any book containing a copy of a form of marriage service in use at the commencement of this Act by any religious body.
Lousia Wall’s Marriage (Definition of Marriage) Amendment Bill, which seeks to amend the Marriage Act to allow for same-sex marriage does not seek an amendment to this section. This suggests that if her Bill passes, then anyone who claims that a same-sex marriage is not a valid marriage or a true marriage commits an offence.
The fairly comprehensive legal opinion by Ian Bassett, argues that the law will have this effect.
This is, of course, concerning because this is precisely what many religious groups teach. The Westminster Confession, for example,which is the doctrinal standard for Presbyterian and Reformed Churches, states:
I. Marriage is to be between one man and one woman: neither is it lawful for any man to have more than one wife, nor for any woman to have more than one husband at the same time.
II. Marriage was ordained for the mutual help of husband and wife; for the increase of mankind with a legitimate issue, and of the Church with an holy seed; and for preventing of uncleanness.
This defines marriage as being between a man and a woman. It entails that if a union is not between a man and a woman then it is not a marriage. Moreover, the purposes of the institution explicitly exclude same-sex unions in that the purposes include the mutual help of a husband and wife and procreation which rules out same-sex unions – particularly if the biblical and theological context and basis for those affirmations is understood.
When the Human Rights Commission was asked about this, prior to the Basset legal opinion being commissioned, it gave the following response:
“Section 56 of the Marriage Act states that it is an offence to allege, expressly or by implication that any persons lawfully married are not truly and sufficiently married or that the issue of a lawful marriage is illegitimate or born out of true wedlock.
Public comments alone do not fall within any of the areas of public life covered by the HRA. You may wish to approach the Department of Internal Affairs directly for more information about this provision and what if any implications would arise if the Marriage (Definition of Marriage) Amendment Bill was enacted as it is currently drafted.”
Some people with legal training have told me they believe that the phrase “not truly and sufficiently married” in s56 simply means ‘not married under New Zealand law’, and so all s56 does is forbid someone from claiming a marriage that is legal under New Zealand Law is not legal under New Zealand law.
In preparation for my recent debate at Auckland University on whether the Marriage Act should be amended I did some research on this and what I stumbled upon suggests Bassett’s reading is in accord with the original legislative intention.
It seems that the clause found its way into the marriage law under the government of William Massey in 1920.
The background was that in 1908 Pope Pius X, issued the document Ne Temere, which promulgated canon law on marriage. Canon law recognised marriages of other churches or religions as valid marriages but it imposed certain conditions on Catholics. For example, any Catholic not married in a catholic church was deemed to not have a valid marriage. Ne Temere caused outrage as it suggested as that Protestants who had married Catholic women in a protestant church were not validly married to their wives. The implication was that they were “living in sin” and their children were literally bastards.
In New South Wales Ne Temere came within votes of being banned.
The 1920’s was a time of some sectarian unrest in Ireland between Protestants and Catholics and sectarian feelings ran high.
Section 56 of the Marriage Act was the New Zealand government’s response to Ne Temere. This fact suggests that when the legislature referred to allegations that any persons lawfully married are not truly and sufficiently married or allegations that that the issue of any lawful marriage is illegitimate or born out of true wedlock, they were not referring merely to someone claiming a marriage is not legal under New Zealand law; they were referring to religious doctrines that taught that a marriage which was legal under New Zealand law was not a valid marriage in the eyes of God or according to natural law or canon law.
This is also suggested by the Select Committee report on s56. The Solicitor General reported to the house as follows:
“If the new clause becomes law in its present form [it did] the Roman Catholic Church will still be at liberty to promulgate its doctrine that the marriage of a Catholic celebrated otherwise than before a priest of a Catholic Church is not a sacrament. But that Church will be debarred from promulgating declarations that a sacramental celebration is essential to the validity of a marriage or that marriages entered into without such a sacramental celebration are in any respect invalid as marriages; and will also be debarred from alleging that persons so married are living together in adultery, or that their issue is illegitimate. In my opinion that is the effect of the new clause, and I see no reason to believe why a Court of Law would interpret it otherwise.”
Newspaper articles on s56 from that time suggest a similar reading. So I think this at least sheds some light on what the legislature intended s56 to mean. It made it an offence to state expressly or by implication, that any persons lawfully married are not truly and sufficiently married; or allege, expressly or by implication, that the issue of any lawful marriage is illegitimate or born out of true wedlock. The New Zealand government made it clear that religious organisations that have doctrines which teach that certain marriages recognised by law are invalid and are really forms of sexual immorality, are committing an offence if they promulgate this teaching.
The Bill of Rights Act 1990, which protects Freedom of Religion and Freedom of Expression, cannot override statute:
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
As far as I know this law has never been enforced; however, it remains on the books and as Madeleine points out, the Summary Proceedings Act 1957 provides that any citizen can lay an information at the District Court and initiate a private prosecution against any other person. Now, the Criminal Procedure Act will come into force next year, and that will make private prosecutions that much harder to bring, but determined litigants may still try and are we really ok as a country with permitting that possibility to remain on the books?
Whether the reality of a prosecution will or will not eventuate, and if it does whether the outcome will or will not be as parliament originally intended, few Christians want to be in the position of knowingly offending a law. The issue here is not just about the risk of an actual prosecution; we are not upholding Freedom of Religion, Conscience, Expression if we are saying, well, technically it is an offence, you probably won’t be prosecuted so, what’s your problem?
If the Bill is passed, which it should not be, it needs to be amended so as to remove s56 of the Marriage Act.