This probably won’t shock any of my readers, but I do not support Louisa Wall’s proposed amendment to the Marriage Act.
The Marriage (Definition of Marriage) Amendment Bill recently passed its second reading in Parliament, and our ever-eager-to-say-they-made-a-difference politicians will almost certainly vote it into law this year. The new legislation would see the definition of marriage used by the Marriage Act 1955 expanded to include unions of two people of the same sex. Existing prohibitions would remain in place (e.g. close relatives still will not be able to marry), and the definition of marriage will not be broadened to include unions of more than two people.
I do not believe that Parliament actually cares what most people want (nor should they always do so). I think that even before the routine of hearing public submissions began, it was a foregone conclusion for those Members of Parliament who supported the Bill that they would continue to support it, and that they were not genuinely open to hearing people explain why they do not support the change. A recent poll (16 March 2013) at one of New Zealand’s most widely read blogs, Whale Oil (where the blogger-in-chief Cameron Slater vocally supports the change), showed 63% opposition to the Bill, surprising if only because of the context in which such opinion prevails. Perhaps more “respectably,” Curia market research in February 2013 found in its “moral issues” poll that fewer than half of respondents (47%) supported the law change, and a similar number (43%) maintained that the Civil Unions Act (virtually a clone of the Marriage Act, but including same-sex unions) is already adequate for same-sex couples. So while, again, I am not a populist who thinks that the government should always do whatever the people want, it’s also not clear that this change is “the will of the people,” and when politicians and lobbyists for the change insist that it has overwhelming support, they are either not telling the truth or they are being selective in which polls they listen to.
In point of fact, the Select Committee hearing public submissions knowingly prevented many opponents of the Bill from making their oral submission at all. Whether this was done so that they could then claim that fewer people gave oral submissions against the Bill, thus skewing perception of the support for the Bill, or they simply were not interested in hearing what opponents had to say because their decision was already made, is not clear – although I suspect that a mixture of both explanations is correct.
But enough about the political wrangling. Here is why I do not support the change, and also what disappoints me about the state of the debate. I’ll start with some broader comments about marriage and sexuality and then I’ll zero in on the Marriage Act and the debate around its proposed amendments.
Marriage and sexuality
As I hope is true of all sincere people, my values and beliefs about life, reality and everything inform the way that I evaluate any law, policy or opinion. I wouldn’t be a very honest person if I held to a range of beliefs that committed me to rejecting a policy but I pretended to agree with it because I felt that the culture expected it of me. My beliefs about what constitutes marriage are no different. Marriage is the union of a man and a woman. Sexuality is part of the way that we were created to express love and to promote procreation. Like all other human functions, it can go wrong through no deliberate actions on the part of the person who has the dysfunction. Our auditory, visual, olfactory, nervous, hormonal and mental systems and functions can go wrong. We know this. Since our sexuality is a human function too it should not be difficult to see that it could go wrong as well.
Of course, if there’s no such thing as “proper” function, if we just happen to be here, we happen to have the bits and pieces that we have, there’s nothing that those bits and pieces are really for in any objectively true sense and there’s certainly no reason or purpose to our existence, then this may not sound right to you.
If you think that we are just whatever we find ourselves to be and it’s not possible for us to be dysfunctional because there’s no way that we were meant to be and certainly nothing that we are here for other than what we decide, then I’m wrong and our sexuality can’t go wrong.
If I’m right then God created everything that exists, and at the very least, he has intentions about the way in which human beings live. It’s proper (by which I mean something like “in accordance with correct function as intended by our maker”) for men and women to come together in marriage, which includes sexual union. Existing in the world are all sorts of dysfunctions too. There are mental conditions under which people hear voices that are not there. Some people have a strong disposition to addictive and also harmful behaviours. Some people are disposed to hold strange (but actually benign) beliefs. Some people are born with missing limbs. Still others find themselves sexually attracted to members of their own sex. Some people find themselves sexually attracted to people who differ radically from themselves in age (namely, children). All of these are dysfunctions because they depart from what our brains, limbs, nervous systems and sexual capacities exist for.
If I’m right, it’s also the case that God commands certain kinds of behaviour and condemns others, part based on his intentions for the way that we live and also based in part on the fact that God wants what is really good for all of us. It is these commands, in my view, that constitute our moral obligations. I say this to highlight the fact that the above considerations about proper function do not, in themselves, make any kind of sexual behaviour morally prohibited, they merely provide an account of what I mean and don’t mean when I say that some behaviour is “natural” and some is not.
If I’m right, another fact is that we should love and accept all of these people, however they find themselves in life in terms of their physiology, mental capacity or sexuality.
The central issue: What is marriage?
But I hear you say, “That’s religious! Why should anyone live according to your religion?” A tempting reply is to ask why anyone should conform to anyone’s beliefs at all, including the acceptance of your understanding of the public institution of marriage, but I digress. Sort of. Because when we get to the issue of marriage, yes I have religious reasons for thinking that marriage is the union of a man and a woman. But you, I daresay, have no good reasons (or at least, no reasons that I find convincing) for thinking that marriage can be the union of two men or two women, and there are good reasons that people should accept (whether they consider themselves religious or not) for thinking that there is a real difference between same-sex and opposite-sex unions that warrants different treatment of them.
In addition to my beliefs about what is and isn’t natural or functional, about God and how morality is grounded, and how we should love and accept people who are different from us (whether they are more or less functional), I also think that the Judeo-Christian understanding of marriage (which is, of course, much older than Judaism or Christianity and is shared by many, many people and cultures outside of the Judeo-Christian tradition) should continue to be retained in law as the correct one. The union of a man and a woman is the basis of a family for it alone is the union that produces children. No other union fulfils this function in society (or even outside of society). Robert George and others, dubbing this the “conjugal” view of marriage, sum their view up like so:
Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it.1
I agree with this assessment. I am on record as saying that rather than seeing same-sex marriage created by the government, I could live with the government not being involved in marriage at all, and leaving the institution within the private sphere altogether. However, that was a “second best” option, staring in the face of the inevitability of the government getting marriage so wrong (as it is about to). Marriage offers public good and the state does well to recognise, promote and regulate it – provided it does this to marriage, and not to this other type of union that I do not consider to be marriage at all.
What Louisa Wall’s Bill proposes to do is to abandon the conjugal concept of marriage in New Zealand law and replace it with what George calls the “revisionist” view, described like so:
Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear.2
Of course, if the state ought to recognise all unions of people who love each other (or just people who want to be together, since the state obviously can’t tell whether or not they really love each other), then it is hard to see why any constraints at all should exist on marriage among competent adults, and why unions of more than two people should not be treated as marriage. If they love each other and can have children (which may mean they need to adopt children in order to have them), then it is surely an imposition of your own mores onto them to tell them that they cannot marry. Why strip them of their rights? More on rights in a moment. It is true that some people make the claim that the Judeo Christian take on marriage employs a double standard, since there are all sorts of unions in the Bible that are recognised as perfectly legitimate marriage. The short reply is that this claim is just not true, as I have explained before, so the quip about double standards can simply be ignored. The other answer is that we were trying to leave religious reasons out of it for now, remember? (Of course, a further response is that even if the Judeo Christian outlook was employing a double standard, so what? That hardly makes this reason for thinking that a marriage is the union of a man and a woman wrong, does it?)
The production of children is a significant, non-arbitrary distinction between the union of a man and a woman and unions of other kinds. Even among proponents of same-sex marriage this recognition occasionally rears its head, namely when those proponents claim that in order to have the same rights as a married couple, they must have the right to a child via adoption. If marriage was simply the union of people in love then in most scenarios the question of having children would never arise (I say “most” because there are cases where a person decides that they are gay after already having children). After all, what is there about the union of a man and a man that suggests that children should be involved? A corporation cannot adopt children, neither can a collective, a church or a club. Only on the supposition that marriage has some natural connection with child rearing does it even make sense to suppose that if a couple is married then they should be able to adopt.
What’s more, those who defend this conception of marriage are immune from the politically driven cheap shot of being compared to racists who do not think that people of different races should marry (a position called anti-miscegenation). Those who prohibit mixed race marriage recognise that what they are supporting is a prohibition on something that is theoretically possible. A black man and a white woman could in theory marry, in this view, but they should be banned from doing so because race mixing is wrong. In other words, people are actually being refused permission to marry. But those who support the conjugal view of marriage are doing no such thing, if their view of marriage is correct. Rather than saying that two people should be disallowed from marrying, they are saying that what two people of the same sex want, whatever it may be, is not marriage at all. George and fellow authors also respond to the charge that appealing to the fact that men and women produce children together somehow excludes infertile couples from marriage, and curious readers are encouraged to read the article (which is excellent).
This is not a matter of discrimination
“But to only have heterosexual marriage discriminates against homosexuals because of their sexual orientation!” This is the standard line used against those like me who do not think that Marriage should be redefined. We are painted as thinking that discrimination is good and that we should deny people human rights based on their sexual orientation. Those who use this sort of rhetorical ploy reveal that they do not understand what the issue is really about. These accusations, far from being accurate, conceal the real issue, namely the nature of marriage. But are the accusations even true? Does the conjugal view of marriage promote discrimination and the suppression of human rights? Not at all.
In a trivial sense the Marriage Act 1955 discriminates, but only because it says that marriage is something and not something else. Even those who support the proposed amendment support discrimination, since the proposed amendment does not remove the prohibition on certain types of union (e.g. marrying a close relative), and neither do they wish to make marriage broad enough to include unions of more than two people, which is also discrimination. The Act does not overtly define marriage as a union between a man and a woman. When the Act was written nobody would have doubted that this is what was meant, because this was the understood definition of marriage (and, I maintain, the correct one).
But in any sense relevant for human rights, no, the Marriage Act in its current form does not discriminate against anyone on the basis of sexual orientation (or race, religion, political affiliation etc). Sections 17 and 18 of the Act place restrictions on the ability to marry for people under the age of 16 (who may not marry) and for minors (people under the age of 18, who require the consent of a guardian, or the Family Court as per Section 19). These restrictions exist because of the diminished capacity for consent that exists in younger people and to prevent the exploitation of children. No person, however, is prohibited from entering marriage on the grounds of their sexual orientation. Given the definition of marriage that the Act presupposed, however, few if any homosexual people would actually want to enter marriage, since marriage is the union of a man and a woman – and people who are attracted to members of their own sex are not likely to wish to enter such a union.
This is not a matter of human rights
The report of the Select Committee that heard public submissions on the proposed amendments, unfortunately, shows that even they have not grappled with the nature of human rights in general:
We acknowledge that whether or not the ability to marry constitutes a human right has been a topic of much debate. Proponents of the bill have expressed the view that the right to marry freely is a human right, which is currently denied to same-sex couples and transgender people. Opponents of the bill argue marriage is not a human right.
The majority of [the Select Committee] consider that marriage is a human right, and that it is unacceptable for the state to deny this right to same-sex couples. Others of us believe that marriage is not a right, and should continue to be the sole domain of heterosexual couples.
The “ability to marry,” if it is a right at all (I make no comment on that here), would be a human right, that is, the right of individual human beings. And as explained under the previous heading, this right (or at any rate, this ability, even if the right to marry isn’t a right) is not denied to anyone on the grounds of sexual orientation. But if the ability to marry is a right and human rights are not necessarily individual rights, but instead can be had by groups of human beings, then we would have to say: “Marriage is a human right, and it is unacceptable for the state to deny this right to polyamorous groups of three or more adults.” That we do not (in New Zealand at least) say this suggests that in fact we do think of human rights as individual rights, and (in my view) correctly so.
If we are talking about the rights of individual human beings to marry somebody else, then heterosexuals and homosexuals currently have identical rights in law. I do not have the right to marry someone of the same-sex and neither does a homosexual man. A homosexual man has the right to marry a woman, as do I. Here many people are reaching for the rhetorically powerful language of taking away other people’s human rights, which is satisfying at the level of public argument where the aim is to cast one’s opponents as opposing human rights. However, as the title of the Bill reminds us, the point of the change is not to change which rights individual people have, but rather to change the definition of marriage itself. Currently men and women have the same rights with respect to marriage. If the Bill becomes law, men and women will continue to have the same rights. What will have changed is the nature of the legal relationship that they are entering.
It is not as though we currently have an agreed concept of marriage, with a spat going on about who can enter it and who can’t. What is going on is a more fundamental disagreement about what marriage is.
As long as the proponents of this Bill – Unfortunately including most of those in Parliament who are making the decisions about whether the law will change (a fact that depresses me) – continue to argue about whose rights are being suppressed rather than what should and should not constitute a marriage, they are diverting from the central issue and simply engaging in rhetorical grandstanding that generates heat without light.
Will this “affect YOUR marriage”?
Sometimes when discussing the issue of same sex marriage, proponents of the change will quickly change the subject from what counts and doesn’t count as marriage and start talking about your motives or something similar. The line of comment goes something like: “But this change won’t have any impact on YOUR marriage, so why do you care?” I’ll set aside the rather depressing impression this gives, namely that politically vocal people assume that everyone is motivated by nothing but self-interest. Unless something directly impacts you, you couldn’t possibly have a principled opinion for or against a given policy. To put it gently, I hope that people are able to be a bit deeper and more principled than this.
But on to more important responses to this comment: Firstly, it misunderstands democracy. Even if I thought that this law change had no effect on my marriage, and even if I was not married at all, to say that I am uninvolved in such a law change is to either overlook or to reject the notion of democratic representation. In the liberal democracy the people are not governed by outsiders or by dictators, but instead by representatives. Laws that are passed in a parliamentary democracy like ours are not expressions of the will of politicians, but rather they are passed on behalf of citizens. Assuming that civic involvement is a virtue at all and that we should care what our representatives do, it seems fairly obvious to me that if they are promoting a concept of marriage that I think is fundamentally mistaken and which would result in official public endorsement of this conception of marriage, it is merely a case of rhetorical bullying to suggest that I should keep my nose out of it.
Secondly, this retort fails to understand the nature of the change being made. The claim that “this won’t affect your marriage” reminds me of a related comment. A friend, on seeing that there is a website called “Protect Marriage,” which promotes the conjugal understanding of marriage, remarked, “protect marriage from WHAT?” Here too the assumption was that this change won’t do anything to marriage (or to my marriage, or the marriages of other people). Of course there is a trivial sense in which that is true: Nobody is going to come into my home and force me and my wife to live differently. But if that’s what people mean when they say that this change wouldn’t affect my marriage, they are wasting time with pointless observations. Nobody ever claimed that this would happen.
But something will happen. I would be happy enough for there to be no Marriage Act, and for marriage to be a private affair. But it isn’t. In addition to having my relationship with my wife, we also have a particular type of legal union. Ours is a legal marriage by virtue of the Marriage Act. To change this Act would be to change the nature of the legal institution that we have, and which any legally married couple has. I’m fond of (good) analogies, so here are two, one historical and one fictional: Operation Bernhard was a secret plan devised by the Nazis during World War II to destabilise the British economy by flooding the country with counterfeit currency. How would this destabilise the economy? Simple: If you increase the number of pounds in the economy, you devalue them all – something that nations who solve problems by printing money should take note of! Similarly, if you change the definition of marriage so that it includes more types of union, you reduce the uniqueness of all marriages. A second (fictional) analogy makes this clearer by taking things to the extreme: Suppose the law was changed so that everyone who lived on the same street was automatically considered to be a married group, so that everyone (or at least everyone who lived on a street with more than one occupant) was married. Would that affect marriage from the perspective of a person who was married prior to the change? Quite clearly so. When everybody is married, everybody may as well not be married. Whereas prior to the change my (legal) marriage meant something, it now means much less. My relationship with my wife would still be as wonderful as ever – we would still, in a true sense, be married according to a conjugal understanding of marriage. But the law would now regard my marriage in such a way that the legal recognition meant very little. This would only be so in the above fictional scenario because the definition of marriage is now looser (by which I mean broader), hence reducing the uniqueness of marriage as recognised in law.
Remember, this is not a disagreement where we have a shared understanding of marriage but a disagreement only about who should and should not be allowed into marriage. If that were the disagreement, then it is true that allowing same-sex couples to marry would not affect my marriage or anyone else’s. The concept of marriage wouldn’t have changed, it’s just that there would be more people enjoying it. Instead, as explained earlier, this is a situation where there are two different conceptions of marriage on the table. Currently New Zealand operates under one concept of marriage, and the current version of the Marriage Act applies to everyone who is married. If the proposed amendments pass, then New Zealand will be operating with a different conception of marriage, and the amended version of the Marriage Act will, again, apply to everyone who is married in future.
If you say that a change to the Marriage Act has nothing to say about opposite-sex couples who get married, then you are simply mistaken. You’ve got the facts wrong. These changes would not change the status of people who are homosexuals. These changes are to change marriage into something else – something that some homosexuals want instead of what it is now. The marriage of everyone is being changed so that marriage becomes a desirable thing to people who don’t currently want it.
Now for a few comments about how the debate in New Zealand (and it seems to me, around the world wherever similar changes are afoot) is being carried out. In a word, badly. The proposed changes are being discussed in a manner that betrays an appalling intellectual vacuum on hot-button issues – the type of shallowness that is the bane of the reputation of political discourse between politicians in general.
Things have reached a point where a sincere proponent of the proposed changes can say to me “I have not seen any good arguments for not including same-sex couples in the definition of marriage” without having actually read a single serious article or book proposing that marriage should be construed as exclusively including opposite-sex couples. Just reflecting on how one happens to feel about the change – as well as engaging in banter on social media websites or surveying people as to what they think – now counts, so it would seem, as seriously considering the other side of an issue.
Just reflecting on how one happens to feel about the change – as well as engaging in banter on social media websites or surveying people as to what they think – now counts, so it would seem, as seriously considering the other side of an issue.
Another way in which shallowness (and perhaps dishonesty) is a troubling feature of the promotion of Ms Wall’s Bill is the distortion of what the Bill is actually about. The title of the Bill gets it right – it isn’t about which people are allowed to get married. It is about the “definition of marriage.” Stated differently: The status quo in law is that we recognise marriage as being a relationship between a man and a woman. Any man and any woman – regardless of their sexual orientation (although there are other restrictions on who may marry, e.g. age). And yet in the current version of the Bill there is a commentary from the Select Committee that we’ve already seen, as follows:
We acknowledge that whether or not the ability to marry constitutes a human right has been a topic of much debate. Proponents of the bill have expressed the view that the right to marry freely is a human right, which is currently denied to same-sex couples and transgender people. Opponents of the bill argue marriage is not a human right.
The majority of us consider that marriage is a human right, and that it is unacceptable for the state to deny this right to same-sex couples.
On the one hand the commentary is talking about human rights, and in the next breath it is talking about the rights of couples – representing at the very least a confusion about the nature of human rights. It is literally senseless to talk about denying human rights to a couple – any more than we can talk about denying human rights to a fishing club or refusing to allow a couple to have a middle name. Couples have neither human rights nor middle names, as such things attach to people, not couples. In the middle of this is the obvious falsehood that marriage is denied to transgender people (nothing in the Act prohibits them being married). This is no more than a collection of civilised sounding nonsense dressed up as serious commentary on a potential law change.
This kind of rhetorical mess and confusion was on full display during the Parliamentary debate prior to the second reading of the Bill, where members were standing up to declare that they had spoken to homosexuals and “realised” that each one is a son, daughter, sister, brother etc. In the first place I can only wonder what they thought they were before, and in the second place, how is such emotive tosh even remotely relevant? The debate was loaded with rhetoric about this or that being “against my human rights and all that,” without so much as a glint of evidence that this was a house of Representatives interested in any serious thinking about either human rights or marriage. Regrettably, much of what passes for debate among the general populace is little better: Facebook links to stories about same sex couples along with sound bites like “Come on, equal rights, people!” Or people who simply sit back, not expending any time or effort at all to look at what reasons people give for their respective positions, announcing “I’ve never seen a good argument for their position.” In all honesty it’s alarming that politicians in such a state, in a nation in such a state, are making any changes to any laws at all!
Lastly, as is often said: “Truth is the first casualty of war.” This debate is no different, and what seems to matter is that people can persuade or move with their claims, and not that they can convey truth with them. On the 10th of March on TVNZ’s Q and A show, Louisa Wall dismissed suggestions that children are better off with a mother and a father. She claimed that “the latest research from the UK, from the University of Cambridge, said that that’s not right, that the most important thing is for children to be brought up in loving families, and it’s about how they function. It’s got nothing to do with the gender of the parents.” Representing the other side of the issue, Colin Craig said that that this claim is at odds with research completed in Sydney last year. Louisa’s response was to say “Well, this is the evidence out of the University of Cambridge that came out two days ago.” Her research was the latest and the best, so it trumps other research.
It’s a type of comment you may have heard from time to time: That the latest and best research shows that whether or not children have a mother and a father has no real bearing on their well-being and so having two fathers or two mothers (for example) is as good. But even if this is what we should desire to be the case, the claim about latest and best research is just untrue. If I phoned up a few conservative friends and then posted their comments here at my blog, calling it “the latest research,” you’d laugh at me – as you should. To refer to something as the latest research coming out of a prestigious university is clearly going to bring connotations of peer reviewed academic research. Louisa Wall knows this.
So, what is this latest research from the University of Cambridge? Well actually it’s not peer reviewed research at all, which immediately undermines the initial impression that Wall’s comments gave. The research was published by the Centre for Family Research, a non-profit group that engages in, among other things, advocacy for same-sex marriage. What’s more, the research looks at 130 families. This does not compare well to the much larger Regnerus study, which was widely decried by combox critics because of its unpopular findings (unpopular among those who might support Ms Wall’s Bill, anyway), but which received a much more respectful hearing among its scholarly dissenters. What’s more, the children involved in this British research were all between the ages of 4 and 8, and was limited to comparisons with adoptive opposite-sex couples. So in terms of peer-review, size and scope, the study is clearly of lesser value than the Regnerus study, and perhaps than the Sydney-based research that Colin Craig refers to (which I have not read, and which is about the stability and well-being of families more generally, and not specifically on the differences between same-sex parent homes and opposite-sex couple homes), and yet Louisa Wall bandied around the words “latest research” as though she had information that trumped all this. She does not, and nothing has changed. Of course, even if she was right and the latest peer reviewed research did show that there is no important difference in the lives of children raised by a same-sex couple from those raised by a mother and father, this would not at all serve as a reason to change the definition of marriage. All it would do is suggest that there are unions other than marriage where children can be raised without ill effect. But this is not the current state of the research at any rate.
So that is one way in which honesty has become a casualty – innuendo about the current state of the research that does not reflect reality. Another is the way in which serious concerns about the proposed legislative amendments are being “shushed” as having no substance when there is actually very good reason to think that the concerns are well grounded and serious. In particular, there is a serious concern over the way that the proposed amendments will impact the right to religious freedom.
The current version of Section 29 of the marriage Act states: “A marriage licence shall authorize but not oblige any marriage celebrant to solemnize the marriage to which it relates.” In an effort to clarify and reassure the public that no minister would be required to marry a couple of two men or two women when they do not regard such unions to be a marriage, the Select Committee, in 5A of its report, recommended amending Section 29 to read as follows:
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.
Schedule 1 lists the following bodies, who are permitted to exercise freedom of religion and not solemnise unions that they do not consider marriage:
The Church of the Province of New Zealand, commonly called the Church of England
The Greek Orthodox Church
All Hebrew Congregations
The Lutheran Churches
The Methodist Church of New Zealand
The Presbyterian Church of New Zealand
The Roman Catholic Church
The Salvation Army
No mention of Grace Presbyterian Church of New Zealand? Any of the numerous Pentecostal Churches? Brethren churches? Church of the Nazarene? The Churches of Christ? ROCOR (The Russian Orthodox Church Outside of Russia)? Seventh Day Adventists? Or what about religious people who are celebrants and not affiliated with a church at all? You get the point. But you’ve got to be a minister of one of these religions or else you’ve got to represent an “approved organisation,” and it must be the case that the organisation is opposed to same sex marriage on religious or conscientious grounds. Otherwise, sorry, you’ve got to do the deed.
In the aforementioned televised discussion with Colin Craig, Louisa Wall repeatedly claimed that by amending Section 29, all threat of censure or legal action against ministers or other religious people who refuse to marry same-sex couples was removed. See the transcript here. For suggesting that there was any legal threat against such people, Wall branded Colin “really disingenuous.” She was adamant: The amendment protected all such people. Yet it looks, on the face of it, as though there is an overt distinction between religious bodies recognised in the Act and other religious bodies, along with religious independent celebrants.
Several legal opinions have been offered to highlight this concern. One was mentioned in the New Zealand Herald:
Wellington barrister Graeme Edgeler said the bill would not force celebrants who were not linked to a religious organisation to carry out marriages.
But 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.”
It’s important to stress that the discrimination complained of in such cases would not be on the basis of sexual orientation. Such marriages would not be refused because the individuals are gay. The refusal to marry would be because of the sex of the parties involved, or rather that the sex of the two parties is the same.
Auckland based Barrister Rachel Wong has raised similar concerns, highlighting – among other things – the way in which the Bill does not provide “safeguards for the rights to freedom of thought, conscience and religion or the manifestation of religion and belief as affirmed by sections 13 and 15 of the New Zealand Bill of Rights Act.”
Another Auckland barrister, Ian Bassett, has provided an in-depth legal opinion concurring with these concerns, stressing that any marriage celebrant who falls outside of the categories permitted by the proposed amendment (namely a minister of religion in one of the religious bodies named, or a celebrant nominated by an “approved organisation”) “will not be able to lawfully refuse (on grounds of religious belief or conscience) to marry a homosexual couple by reason of the sex of the couple.” And this will be the case, Bassett notes, “even though those independent celebrants may hold the very same religious convictions or hold the same views as a matter of conscience just as firmly as the celebrants who (as part of an established church listed in schedule 1 or are part of an approved organization) have the benefit and protection of the s5A conscientious exemption.” Although a Ministry of Justice Report (not a legal opinion) claimed that there’s a difference between independent celebrants and those affiliated with religious bodies and independents because the latter serve a public function not served by the former, Bassett notes that this is “contrary to law.”
11. Unfortunately the distinction drawn by the Ministry of Justice Report opinion is contrary to law, because section 11 of the Marriage Act 1955 (as quoted above herein) itself contemplates that the Registrar may lawfully appoint independent celebrants if it is in the interests of the public generally or of a particular community (including on grounds of belief) that the person be a marriage celebrant.
12. The reasoning in the Ministry of Justice Report for excluding independent celebrants from the exemption is therefore legally flawed. The Select Committee Report has received and made recommendations based upon flawed legal advice. Furthermore the discriminatory nature of the recommendation of the Select Committee can be demonstrated aptly by the following questions.
13. Are the firmly held orthodox (Christian or otherwise) religious beliefs or consciences of independent celebrants who operate independently of an approved church or organization any less valid or deserving of protection, recognition and respect than the religious beliefs of celebrants who are part of an approved church or organization?
Are the rights of independent celebrants (Christian or otherwise) to manifest their religious beliefs (if they elect by performing religious rites in conjunction with the solemnisation of a marriage) any less valid or deserving of protection, recognition and respect than the religious beliefs (and rights to manifest those beliefs) of celebrants who are part of an approved church or organization?
14. In essence the Select Committee’s proposed s5A is unjustifiably discriminatory. If the Crown Law Office, the Ministry of Justice and the Select Committee are of the opinion that there should be a conscientious exemption on religious grounds for church approved celebrants (or celebrants who are nominated by an approved organisation), then the exemption should be available to all celebrants without discrimination on random grounds.
What is more, the human right to freedom of religion is, like all human rights, an individual right. The proposed amendment does nothing to address the human rights concern, for as Bassett points out (all emphasis original):
16. Furthermore the recommendation of the Select Committee is also unprincipled and wrong because the proposed s5A provides that the exemption only applies where the “celebrant who is a minister of religion recognised by a religious body … [or] … 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.” In other words it is not the beliefs of the celebrant that are protected (as required by ss13 and 15 of the New Zealand Bill of Rights Act 1990, but the exemption only operates if the solemnizing of the marriage would contravene the religious beliefs of the religious body … [or] … the approved organisation. That limitation is at odds with the thrust of ss13 and 15 of the New Zealand Bill of Rights Act 1990. Furthermore as stated by the European Court of Human Rights in Eweida and others v The United Kingdom Strasbourg 15 January 2013 at paragraph 81 :
“The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance. … Provided this is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed.”
17. The Select Committee’s requirement (expressed in the proposed s5A) that celebrants only receive the benefit of the exemption if their beliefs meet an external prescribed standard of belief (ie the beliefs of the religious body or approved organisation), is misguided. 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.
Similar concerns are raised by Otago University law professor Rex Adhar (http://www.pundit.co.nz/content/gay-marriage-and-preserving-religious-freedom-for-celebrants). And yet in spite of the legal facts as explained above, Louisa Wall and others persist in claiming that those who raise concerns over the implications of her amendment for religious freed are no more than “fearmongers.” This is not honest. It dismisses important concerns and stigmatises those who raise them, and it is certainly no way for a member of parliament to reply to those who raise concerns about a piece of legislation that she is trying to have passed.
The truth is that it would be very easy to ensure that such human rights concerns are addressed. Add an amendment that states quite plainly:
No celebrant is obliged to solemnize a marriage if solemnizing that marriage would contravene their religious beliefs or philosophical or humanitarian convictions.
The fact that Ms Walls publicly insists that the matter is already addressed and dismisses and labels those who see that it is not suggests that she knows full well the legal implications of her Bill and is happy with them. This appears to be one more link in the chain. When civil unions were proposed, people noted that they were essentially identical in legal terms to marriage. Proponents of that Bill at the time (also Labour Party MPS, for what it’s worth) assured people that if Civil Unions became a reality we shouldn’t worry about marriage. There would be no need to amend the Marriage Act because Civil Unions exist to serve that need. Now that Civil Unions have been with us for a few years, we are being told that we shouldn’t worry about the apparent legal implications of the change, nobody’s religious freedom is at risk. All along the trajectory has been fairly obvious, and these implications are part of it.
So there you have it. I do not support the proposed amendment to the Marriage Act and I take a dim view of virtually all of the rhetoric that is being used to promote it.
- I think there are good reasons, both in terms of my own religious convictions and considerations that other people should accept, for maintaining that marriage should be limited to the union of a man and a woman.
- Concerns about discrimination and human rights are in general factually mistaken. In the first place, the current version of the marriage Act applies to all individuals equally and does not exclude people from marriage on the grounds of sexual orientation. The real issue is that people of homosexual orientation do not want marriage, for marriage, according to the definition presupposed by the Act, is between people of opposite sexes.
- Attempts to dismiss objections to the proposed amendment on the grounds that the change will not affect my marriage are misguided on several fronts. In the first place it supposes a very base description of how people engage the political process, motivated only by what is “in it for them.” Secondly it fundamentally misunderstands the concept of democratic representation, and thirdly it fails to note the way in which the change affects the type of union had by all those married under the amended Marriage Act. Again, this is not a genuine attempt to change the status of homosexual people. Instead it is the attempt to change marriage – something that homosexual people currently do not want – into something that they find desirable.
- Much of the rhetoric that is used to push this amendment and to dismiss objections is either shallow or dishonest, and in some cases both. While emotive and provocative anecdotes and clichés are the order of the day, serious grappling with the issues of the nature of human rights and marriage itself is noteworthy by absence. The current state of human knowledge on related issues such as adoption and families is used as something of a wax nose, portrayed in just whatever way the proponent of the change wishes. When serious concerns are raised about actual human rights implications of the amendment, they are shooed away with derision even though there is clearly a case to answer.
Chances are I’ve missed a few things, but that should be enough to spell out the big things. Are our representatives interested in concerns like these? It would appear not. But for what it’s worth, they should be, and so should you.
- Sherif Girgis, Robert P. George and Ryan Anderson, “What is Marriage?” Harvard Journal of Law & Public Policy 34:1, 246. The article is available online at <http://www.harvard-jlpp.com/wp-content/uploads/2013/10/GeorgeFinal.pdf> [↩]
- George et al, “What is marriage?” 246-247. [↩]
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