Barrister Ian Bassett has given another opinion describing the risks to freedom of religion and belief of Louisa Wall’s Marriage Amendment Act Bill if it is enacted in its presently proposed form, which would include this amendment:
“Without limiting the generality of subsection (1), 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.”
It is clear that any marriage celebrant exercising their public function who is not covered by the amendment risks being in breach of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 if they refuse to perform their public function as marriage celebrants because it is a same sex couple seeking to be married.
Church ministers, marriage celebrants, court registrars, church elders, leaders, photographers and caterers and any other person or entity supplying services to the public risks being in breach of the Human Rights Act 1993 if they refuse to supply services to a couple seeking to be married because the couple are same sex. For some this could also mean risking their employment.
Service providers to the public risk being in breach of the Human Rights Act 1993 if they refuse to supply services to a married couple because the couple are same sex.
The New Zealand Law Society’s Law Reform Committee headed by Professor Paul Rishworth LLB (Hons) M Jur highlighted the risk to freedom of religion and belief in the Bill in its submission to Parliament:
“The proposer of the Bill said that the Bill was not intended to compel marriage celebrants to perform marriages contrary to their religious beliefs. However, in the Law Society’s view, Professor Rishworth says it is arguable that marriage celebrants who refuse to perform same-sex marriages will be acting unlawfully under the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990, or both.
“We want to highlight arguable conclusions which seem to be at odds with the settled intentions of the Bill’s drafters. Whatever the position, the Law Society believes it makes sense to put the matter beyond doubt,” Professor Rishworth says.
The only thing that the amended Bill puts beyond doubt is that the critics of those raising fears about the Bill’s threat to freedom of religion and belief were wrong. By recommending an amendment the Select Committee are agreeing that a risk existed, as the likes of Ian Bassett, Grant Illingworth have argued, contra to The Human Rights Commission’s claim that all “…religious officials and leaders are free to refuse to perform marriages that are not in accordance with their religious beliefs.”
Bassett, Illingworth and Rishworth are not alone with their concerns among the legal fraternity.
Graeme Edgeler, a Wellington Barrister has been quoted in the Herald saying:
… if an independent celebrant declined to marry a same-sex couple, the couple could then complain to the Human Rights Commission.
“It’s not about [celebrants] being forced, it’s about people getting in trouble afterwards if they didn’t,” he told APNZ.
“They’re not breaking any rule in the Marriage Act, but rules in other acts. The main one would be the Human Rights Act, which says you can’t discriminate on the basis on sexual orientation or gender.”
Auckland Barrister Rachel Wong has raised issues against the Bill.
This blog’s Madeleine Flannagan LLB, Associate Barrister and Solicitor at Coast Legal, adds her voice:
“The Bill, in its present form, fails to protect individual freedom of religion and belief (belief being a comprehensive viewpoint not based on religion). The proposed amendment only protects group religious rights, which is little protection at all for most religious celebrants as few denominations hold formal views on marriage, many practitioners of religion do not belong to a group and for those that do they might hold a different personal view on this topic to the group view. The amendment then fails to protect the religious freedom of most religious celebrants just as it utterly fails to protect the freedom of belief of non-religious celebrants who have no group to appeal to to protect their freedom.”
Ian Bassett’s latest opinion thoroughly analyses the legal effects of the amended Bill, a summary as to whose freedom of religion and belief it protects and whose it does not follows:
Protected
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
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.
Independent marriage celebrants 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.
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.
Church ministers, marriage celebrants, church elders supplying their churches, temples, 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 buildings to a couple seeking to be married because the couple are a same sex couple.
Unclear
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.
The amendment does not protect the rights to religious freedom or belief of any individual person, celebrant or minister. Rather it only protects the rights of various State-recognised religious groups. Bassett points out:
Bassett adds further:
Yesterday several church leaders called for the government to amend the Bill to to prevent discrimination against any teacher or other person who believes that marriage should only be between a man and a woman. Christian Network director Glyn Carpenter is cited as stating:
“People should not be denied employment, they should not be denied promotion, and should not be dismissed from employment for refusing to go along with the new definition of marriage”.
Some teachers worried they could face accusations of discrimination if they did not teach that all marriages were equal.
The Rev Stuart Lange of the Presbyterian Affirm movement said the change was needed to stop the Government from fixing funding criteria that discriminated against religious-based social service agencies that did not support gay marriage.”
No MP is yet to be found willing to move such an amendment. After months of MP Louisa Wall, whose qualifications according to Wikipedia are “netball player and rugby union player“, assuring the New Zealand public this Bill was never intended to violate religious freedom or belief, it was not going to, that those who said it did were “fear mongers” the question needs to be asked why won’t they amend the Bill to protect freedom of religion and belief?
Ian Bassett, Grant Illingworth, Paul Rishworth, the Law Society, Graeme Edgeler, Rachael Wong and myself are hardly “fear mongers”. We are members of a profession who are qualified to make the statements we do.
Download Ian Bassett’s Legal Opinion of 6 March 2013
Download Ian Bassett’s Legal Opinion of 19 November 2012
Download Ian Bassett’s Legal Opinion of 27 August 2012
Download UPDATE to Legal Opinion of 29 August 2012
Tags: Freedom of Religion · Gay Marriage · Grant Illingworth · Ian Bassett · Louisa Wall · Marriage Amendment Act Bill · Marriage Equality · Paul Rishworth · Rachael Wong · Same Sex Marriage22 Comments
A common objection to belief in the God of the Bible is that a good, kind, and loving deity would never command the wholesale slaughter of nations. In the tradition of his popular Is God a Moral Monster?, Paul Copan teams up with Matthew Flannagan to tackle some of the most confusing and uncomfortable passages of Scripture. Together they help the Christian and nonbeliever alike understand the biblical, theological, philosophical, and ethical implications of Old Testament warfare passages.
What about David Ryken and Associates legal opinion that questions the factual basis of Bassett’s legal opinion?
http://stmatthews.org.nz/Images/UserFiles/File/A%20response%20to%20Ian%20Bassett.pdf
David Ryken’s reasoning and analysis was flawed. Ian Bassett’s opinion is better reasoned, so is Professor Rishworth’s.
The Select Committee clearly agrees that this is so or it would not have attempted to come up with an amendment. The amendment specifies which people can and cannot be forced to act against their consciences (by force I mean risk legal consequence), the ambiguity that was there has been clarified by the amendment, this blows Ryken’s opinion into the category: obsolete.
Madeleine, one can always find voices to articulate contrary views – and it is certainly the current tactics of conservative Christianity to declare loudly and repeatedly they suffer discrimination. But I think Kevin Hague expressed it well in his parliamentary speech last night:
And your complaint is clearly a minority view, and a motivated one at that. As Hague said:
“while the church voice that has been heard loudest has been one opposed to the Bill, all the while there have been faiths, denominations and congregations who have wished to be able to conduct same-sex marriages, and whose freedom of religion has been constrained by the existing law. Passing this Bill into law will extend religious freedoms, and will not restrict them in any way.”
This assessment of Hague’s is also telling:
This legislation is not about discriminating against, or persecuting, conservative Christians. It’s about recognising diversity, human rights and freedom of religion and belief.
I think that is the reason for the overwhelming support.
I see Ken, because a politican says so it so.
Actually Hague is lying, you can tell this by looking at what the proposed amendment actually says, and looking at the advice the crown law office gave the select commitee prior to them making the amendment. The amendment pretty much follows the crown law offices advice, and there advice made it clear that doing so would not protect the religious freedom of all celebrants.
In law courts dont decide cases by looking at what politicans assure them in speeches they look at what the legislation says and the legal arguments. if you have a legal argument to the contrary your welcome to provide it. Do have any arguments which rebut the case made by Bassett, the crown law office, Paul Rishworth, the Law society?
Saying, I wont read the arguments because a politician says it and that settles it, is perhaps the most silly kind of faith imaginable.
“By way of contrast, those opposed to the Bill believe that this Parliament should legislate for a strict code of behaviour that conforms to a single or very tightly restricted set of beliefs and values based on their own religious beliefs. They believe all must comply with this behaviour code, regardless of whether or not they share the beliefs on which it is based.”
Right, so I take it Hague does not believe everyone must comply with his parties views on say the environment, or Gay rights, or abortion rights and so on, and those of us who reject the moral views expounded don’t have to comply with them, and he wont try and campaign for them to written into law?
I doubt it, this argument is incoherent and has been shown to be so many times. In fact as you know Ken I have refuted it before on the blog and refered to other articles in the literature where its been refuted.
Craig Young.
I notice on your blog you dismiss Bassetts entire argument on the grounds he represented a pro life group in a case once.
Is it your position that the courts in NZ should asses the submissions of lawyers by asking if they have ever represented someone with the wrong political views and dismiss it if they have? Perhaps our courts should only allow representation through competent counsel to liberals, because by your logic if a counsel represents a conservative he is by that reason in incompetent and not to be heard.
Try offering a rational argument.
Ken, Kevin Hague, according to Wikipedia was prior to becoming an MP, “Chief Executive of the West Coast District Health Board. He is also an author, long time gay rights activist and a former executive director of the New Zealand AIDS Foundation”.
(No cheerleader bias in that bio!)
Louisa Wall was a “netball player and rugby union player“
Again, the lawyers I cited, along with the Crown Law Office who I have since learned also agree, disagree with Kevin, Louisa and you as to the actual legal effect.
Intending something and the words drafted actually capturing that intent are two different things.
“I think that is the reason for the overwhelming support.”
What overwhelming support?
This is pandering to pressure groups. The hypocrites on the left and far left only to listen to the voters when it suits them.
This should go a binding referendum before it becomes law.
“I think that is the reason for the overwhelming support.”
What overwhelming support?
This is pandering to pressure groups. The hypocrites on the left and far left only to listen to the voters when it suits them.
This should go to a binding referendum before it becomes law.
Matt, as I said “one can always find voices to articulate contrary views – and it is certainly the current tactics of conservative Christianity to declare loudly and repeatedly they suffer discrimination.” Your comments illustrate this.
Your emotive, but hardly intelligent, reaction is to say “Hague is lying.” Well, I certainly didn’t think so – nor did the vast majority of members of parliament who supported both the amendments and continuation of the bill – by a huge majority.
As you say “law courts dont decide cases by looking at what politicans assure them in speeches they look at what the legislation says and the legal arguments.” Obviously. And the proof of the pudding is in the eating. This bill will clearly become law and them we should wait to see how many Christians get prosecuted.
I suspect none – because surely that was not the intent of he legislation. It is to do with widening human rights and freedom of religion and belief – not imposing a narrow dogmatic moral requirement.
You ask: “I take it Hague does not believe everyone must comply with his parties views on say the environment, or Gay rights, or abortion rights and so on, and those of us who reject the moral views expounded don’t have to comply with them, and he wont try and campaign for them to written into law?”
I think the obvious answer is yes – there has been no evidence he or his party is requiring you to doing anything except respect the rights of others. You are not being required to enter into a same sex marriage, operate a composting toilet or have an abortion. That party is not attempting to pass laws imposing such requirements on you.
The simple fact is that you and other conservative Christians attempt to deny the extension of human rights to others and continue imposing your own version of morality on others. Well, most of society has had a gutsfull of that and the hypocrisy associated with it.
As Hague said about this extension of human rights provided by the legislation – “it’s time.” And he has a tremendous amount of support for that.
Madeleine, what’s with your depiction of CVs? And as for your dig at the MPs – I guess you would similarly have denigrated Martin Luther King’s role in the attempts to desegregate the US because he was black? I don’t however, see you denying input from conservative Chrsitians because of their ideology.
It’s hardly surprising that gay people are working for the adoption of this legislation just as black people were working for desegregation. They were/are the victims of the status quo.
If is trivially true that “Intending something and the words drafted actually capturing that intent are two different things.” But so are ideologically motivated and narrow accusations and the actual reality of the legislation.
As I said, the proof of the pudding is in the eating. I strongly suspect no conservative Christians are going to be prosecuted as a result of the legislation.
Are you willing to bet that there will be any?
And if there are I strongly feel that parliament will make required amendments to clarify the law – as they have in similar situations.
Be honest Madeleine – your resort to legal opinions, minority ones at that, are simply part of your campaign to maintain the status quo where people like you can poke your nose into other’s private business. To the extent of denying minorities the same rights the rest of us have. You guys did that in the US with opposition to desegregation and you are just repeating the same bigoted behaviour here.
“And if there are I strongly feel that parliament will make required amendments to clarify the law – as they have in similar situations.”
Yeah right! Just like they did with the anti-smacking legislation.
I think the law will be amended so those who don’t wish to perform same sex marriages will not be compelled to. Human rights and freedom should cut both ways. Practically , it would be unlikely that those seen a same sex marriage would get a person who is diametrical opposed to their own ethics to do legally marry them. They will simply avoid any tension for this important occasion and look for someone else. Most people will respect someones personal stance and find what they are looking for elsewhere. Perhaps one thing the current structure of this law shows it has been to make sure the popular position i.e same sex marriage, has priority. Any amendments are a wait and see.
Nick, I think the example of the so-called “anti-smacking” legislation that Chuck raises here is useful. Not only were amendments made but there was a multiparty decision to set in process an annual review of the operation of the law. We have had several reports from that now and I think it is clear that concerns raised by a lot of people at the time have proven misplaced.
Any real widespread concern about this current legislation could be handled in a similar way. However, I don’t believe there is any real widespread concern. The bill has overwhelming support in Parliament and amongst the population. It’s unlikely that parliament will see the need for a similar process when most of us recognise that the opposition is coming for a small number of very vocal but ideologically driven conservative Christians.
I have thought a lot about this issue, weighing up both sides, and have come to the conclusion that no one is going to be forced to perform marriages they do not want to by this bill.
The simple reason for this is that no one in the whole country will ever be FORCED to perform any marriage. In my present situation I cannot be press ganged into marrying anyone, men or women or and combination of the above. Why not? Because I am not a marriage celebrant as either a religious minister or a non religious celebrant… and I am not required to be so.
If I make a conscious decision to agree to perform marriages, and to register as a celebrant then I will rightly be required to not discriminate on any basis. If I don’t feel I am capable of honestly committing to this, and I disagree with the concept of marriage in the country I live in then I am free to nor become a celebrant, or to give up this duty. I cannot thus actually be forced to marry anyone.
In the case of religious ministers the situation is much the same. If someone belongs to a church which does not approve of gay marriage, and that is the group they have chosen to represent – then they are not being compelled to perform gay marriages.
If on the other hand they belong to a group which does approve of gay marriages, and have made the decision to be a part of this group, then they will be required to perform gay marriages…
But, and this is the central point, in each of these situations the person is free to choose whether or not to be a part of a certain group and is never compelled to do anything against their beliefs.
[…] who do not belong to such an organisation, no matter what their beliefs. This is well addressed on M and M. A lay Catholic celebrant may believe the same things about gay marriage as a Catholic priest but […]
The government has the right to force public officials to obey the law on pain of termination. If the government had no such right, then a gay marriage law would be a paper tiger. The amendment is quite generous in giving certain groups an exemption, but to push the exemption to anyone who decided that gay marriage was against their religion would be ludicrous. If you don’t fall under the amendment and you don’t want to perform gay marriages, then resign. Otherwise, obey the law and do your duty as a public official.
Note that the law, is, as I said, quite generous. After all, a person who refused to marry persons of different races because of religious beliefs would likely attract a lot of heat.
The point that is missed is the potential prosecutions for refusing services such as facilities for gay couples for marriage and so on. This occurred in Canada. Free speech relating to gay marriage will definitely be stifled in the future. “The bigot will be on the other foot”?
School kids will presumably be indoctrinated that sex marriage is a “human right” and as natural as traditional marriage. Most kids will keep quiet. Some will realise their teachers are just obeying orders to keep their jobs.
Perhaps charter schools may be outside that type of requirement so you may well see charter/ religious schools that can or will quietly opt out of the new sex equality curriculum that will arise. What odds on Muslim schools (we already have some in NZ) being forced to teach the equality of same sex marriage? It will never happen. Yet they have morality police in Saudi Arabia and now in Egypt. An idea for the new bigots to ponder?
Speaking out against gay marriage will inevitably be stifled as Christians choose “peace” over the morality that they hold in private. They may well in private ponder whether love can be a cloak for self-indulgence and whether gay couples who acquire children don’t love the children enough to have them brought up by their biological father and mother. But they won’t voice their thoughts. The desire to know one’s biological parents is very strong but is it stronger than the new orthodoxy?
Will self-censorship become entrenched in NZ? Maybe it already is.
Yet we have brought this state of affairs upon ourselves with decades of stubbornly high numbers of sole parents (some of whom of course have left violent(physical and verbal) relationships and have every reason to leave ), contraception and no fault divorce and perhaps summed up beautifully in the phrase from a UK drama decades ago, “drip dry relationships”.
Father s are absent in hundreds of thousands of NZ households so it’s a short step to acceptance of gay couples where a mother or father is inherently absent from the household. The argument is that at least the children have two parents in the household. It is a brave new experiment.
On a purely selfish level I want to be cared for in my old age and that requires more children.to grow up and get jobs and pay taxes. Where will they all come fro
Is that parody Leigh?!??
Where will all the kids come from!? hahahahaha!
Classic….
Kevin Hague also has another problem IMHO.
He also had a “same-sex” marriage bill in the members ballot at the time of Louisa Wall’s. Both admitted they knew of each others bill prior to the draw. http://www.gaynz.com/articles/publish/2/article_11881.php
Seeing as Kevin Hague was on the Select Committee, I would consider that a conflict of interest. Just because its not his bill would not look good in the business tender world or on any other tender.
This whole thing has been a blatant attempt to subvert normal democratic process. Shameful and a plague on all 77-80 of their houses thus far.
The politicians may start to listen if enough people sign this pledge. They listen to votes.
Tick the statements below that you wish to pledge
I will not use my electorate vote to vote for an electorate MP who supports changing the definition of marriage.
I will not use my party vote to vote for a political party whose party leader supports changing the definition of marriage.
http://www.mymarriagepledge.org.nz/
Christian your comments have some major flaws.
Firstly:
“Where will all the kids come from!? hahahahaha!”
Where do you think they will come from?
Born naturally or adoption or artificial means.
One of my longest friends has a gay dad – her father had FIVE kids with his wife before running off with his lover. That’s how most kids are born naturally to a gay parent.
And then there is adoption and artificials means like surrogacy, IVF and even artificial insemination. All ways homosexual men and women can “acquire” children.
Homosexuals get kids the exact same way heterosexuals do – the only different is the proportion of natural versus artifical means.
Secondly:
“If I make a conscious decision to agree to perform marriages, and to register as a celebrant then I will rightly be required to not discriminate on any basis.”
I’m calling that as absolute rubbish. Unless you’re some kind of freak, I guarantee there will be marriages you WON’T be performing and you WILL discriminate. If a 16 year old child came to you and asked you to marry them to an 80 year old (Which I believe is legal in New Zealand or at the very least a 17 year old is definitely legal), I’m sure you’d turn them down… or maybe you wouldn’t. Maybe you think paedophiles shouldn’t be discriminated against either.
What about the couple who comes to you with a third person and asks you to marry them? While not legal in NZ yet, Canadians are certainly pushing to legalise it now same sex marriage has been legalised there. Are you okay with polygamy? what about group marriages of 4 or more people? would you be willing to officiate them if it was legalised?
Or what if a couple you knew came to you, one you knew personally where one person was violently abusing the other, would you agree to officiate their wedding?
What if the law were to change tomorrow that allowed marriage of 14 year olds (as it once did it in decades past)…. would you honestly be willing to provide a marriage of a 14 year old to a 40 year old if the government declared it legal? Or would you just walk away and quit being a celebrant?
And that’s what it comes down to. Ministers of religions where churches don’t have an official stance (even where the church very definitely has an unofficial one), nearly always feel that marrying people is part of their calling. Followers of those denominations want to be married within their own church by their own ministers. Why should they be forced to forego this because their ministers are forced to quit being celebrants because according to you they shouldn’t be celebrants if they aren’t willing to marry anyone and everyone.
You seem to forget that NZ supposedly has religious freedom. I say “supposedly” because it is quite apparent it does not. Christians have a right to their religious belief to be married by a minister of their religion. They should not be forced to be married by a total stranger of some denomination they don’t agree with simply because that is the only way to be married by a christian minister at all because their own minister has been forced out of being a celebrant.
The right to a celebrant of your own religion (and that includes denomination) is part of the right of freedom of religion, yet you would deny christians this right by forcing christian ministers outside of “recognised” (by the government) denominations to either give up being a celebrant (something they have a right to do under freedom of religion as it’s a big part of their religious beliefs) or take their chances of being sued because they aren’t willing to compromise their beliefs marrying someone against their religious beliefs.
I’m not even a kiwi and I am appalled by your massive attack on the religious freedom of christians in your country. I hate to break it to you, but christians also have a right to religious freedoms enjoyed by the rest of your country.