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Witte, Jr., John
2019.
Church, State, and Family.
Article contents
Solemnisation of Same-sex Marriage and Religious Freedom
Published online by Cambridge University Press: 13 August 2014
Abstract
Same-sex marriage is legal or likely to be legalised in many Western nations. One important safeguard invariably incorporated in the legislation providing for same-sex marriage has been an exemption for religious ministers who object to solemnising such marriages. Another category of potential objectors consists of marriage registrars, commissioners or celebrants employed or appointed by the state. By contrast, an accommodation grounded in the right of religious freedom and conscience for these governmental celebrants has not been granted. This article examines the introduction of same-sex marriage in three jurisdictions – England and Wales, New Zealand and Canada. It analyses the precise ambit of the exemption for religious celebrants, considers the vulnerability of such exemptions to future legal challenge and questions the validity of denying free exercise accommodation to state-appointed celebrants.
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References
2 Same-sex marriage is legal in The Netherlands, Belgium, Sweden, Norway, Denmark, Iceland, Spain, Portugal, South Africa, Argentina, Brazil, Uruguay, Canada, New Zealand, France, and England and Wales. See Pew Research Centre, Religion and Public Life Project, ‘Gay marriage around the world’, 16 July 2013, available at <http://www.pewforum.org/2013/07/16/gay-marriage-around-the-world-2013/>, accessed 2 June 2014.
3 See MacDougall, B, Bonthuys, E, Norrie, K and van den Brink, M, ‘Conscientious objection to creating same-sex unions: an international analysis’, (2012) 1 Canadian Journal of Human Rights 127–164.Google Scholar
4 See, eg, Lupu, I and Tuttle, R, ‘Same-sex family equality and religious freedom’, (2010) 5 Northwestern Journal of Law and Social Policy 274–306Google Scholar.
5 Public Act 2013, No 20. The Act came into force on 19 August 2013 (s 2). The Bill was passed by 77 votes to 44 by way of a free (conscience) vote.
6 See M Backhouse, ‘Wall: Gay Marriage Bill will allow choice’, New Zealand Herald, 10 March 2013.
7 This was a Private Member's Bill not a Government Bill.
8 First Reading, 683 New Zealand Parliamentary Debates (‘NZPD’) 4914, 29 August 2012.
9 See R Ahdar, ‘Gay marriage and preserving religious freedom for celebrants’, Pundit, 14 March 2013, available at <http://www.pundit.co.nz/content/gay-marriage-and-preserving-religious-freedom-for-celebrants>, accessed 2 June 2014.
10 The designated religious bodies are listed in Schedule 1 of the Marriage Act 1955.
11 Marriage Act 1955, s 10(4).
12 Ministry of Justice, Departmental Report for the Government Administration Committee, 13 February 2013, at p 4, available at <http://www.parliament.nz/en-nz/pb/sc/documents/advice/50SCGA_ADV_00DBHOH_BILL11528_1_A318744/departmental-report-ministry-of-justice>, accessed 5 June 2014.
13 Marriage Act 1955, s 11(3)(a)(b).
14 Ministry of Justice, Departmental Report, at para 49. On the erroneous nature of the recommendation, see Legal Opinion by New Zealand barrister, I Bassett, for Family First NZ, 6 March 2013, at paras 7 to 14, available at <http://bobmccoskrie.com/wp-content/uploads/2013/03/Legal-Opinion-6-March-Marriage-Act-Amendment-Bill.pdf>, accessed 2 June 2014.
15 Ministry of Justice, Departmental Report, at para 50.
16 I Davison, ‘Church groups at odds over their definitions of marriage’, New Zealand Herald, 15 November 2012.
17 See, eg, Ahdar, R, Worlds Colliding: conservative Christians and the law (Aldershot, 2001)Google Scholar, ch 9.
18 General Assembly News, 6 October 2012: ‘Church says no to same-sex marriage’, available at <http://presbyterian.org.nz/sites/default/files/ga12/saturday/Church_says_no_to_same_sex_marriage.pdf>, accessed 2 June 2014.
19 S Collins, ‘Gay weddings ban: churches say no’, New Zealand Herald, 23 April 2013, available at <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10879183>, accessed 16 June 2014.
20 Ruth Dyson (Labour), 688 NZPD 8528, 13 March 2013.
21 See, eg, Thomas v Review Board, 450 US 707 at 715–16 (1981); R (on the application of Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1820 at para 233. See further Ahdar, R and Leigh, I, Religious Freedom in the Liberal State (second edition, Oxford, 2013), pp 175, 195Google Scholar.
22 Syndicat Northcrest v Amselem, 2004 SCC 47 at para 54 per Iaccobucci J (for the majority).
23 R (on the application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15 at para 22 per Lord Nicholls.
24 2004 SCC 79.
25 Ibid, at paras 56–58.
26 Ibid, at paras 5 and 43.
27 See commentary by M Hurley, ‘Bill C-38: the Civil Marriage Act’, Parliament of Canada, available at <http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=c38&Parl=38&Ses=1>, accessed 2 June 2014.
28 SC 2005, c 33.
29 Civil Marriage Act 2005, s 2.
30 By 175 to 123 votes, 7 December 2006. The vote was a free vote.
31 38th Parliament, 1st Session, HC Deb, 1525, 16 February 2005.
32 38th Parliament, 1st Session, HC Deb, 1605, 15 February 2005. The Supreme Court in Reference re Same-sex Marriage 2004 SCC 79 at para 39 held that, pursuant to s 92(12) of the Constitution Act 1867, only the Provincial legislatures, not the Federal Parliament, may legislate exemptions to solemnisation of marriage requirements.
33 38th Parliament, 1st Session, HC Deb, 1605, 15 February 2005.
34 Ibid.
35 As reported to the House of Commons on 16 June 2005.
36 2011 SKCA 3; (2011) 327 DLR (4th) 669.
37 Following SSM legalisation, eight commissioners resigned and three lodged human rights complaints against the Saskatchewan Government: 2011 SKCA 3 at paras 11 and 13.
38 Ibid, at para 13.
39 Nichols v Saskatchewan (Human Rights Commission) 2009 SKQB 299.
40 Marriage Commissioners 2011 SKCA 3 at para 18. The options are in the form of proposed amendments to the Marriage Act 1995, SS 1995, c M-4.1.
41 The Grandfathering Option also required that Commissioners who sought the benefit of the exemption had to file a written notice with the Director of the Marriage Unit within three months of the section coming into force: s 28.1(2)(3).
42 NW v Canada (Attorney General) 2004 SKQB 434.
43 Marriage Commissioners, 2011 SKCA 3 at para 23.
44 Ibid, at para 36.
45 Ibid, at paras 39 and 44.
46 Ibid, at para 39. The Supreme Court recognised sexual orientation as a qualifying analogous ground under s 15 in Egan v Canada [1985] 2 SCR 513 at 528 and Vriend v Alberta [1998] 1 SCR 493 at para 13.
47 Marriage Commissioners at para 40.
48 Ibid, at paras 42–43.
49 Ibid, at para 45.
50 Ibid, at para 48.
51 Ibid, at para 49.
52 Ibid, at para 77.
53 Ibid, at para 82.
54 Ibid, at para 85.
55 Ibid, at para 86 (emphasis added).
56 Ibid, at para 84.
57 Ibid, at para 87.
58 Ibid, at para 89 (emphasis added).
59 Ibid, at para 94.
60 Ibid, at paras 95–96.
61 Ibid, at para 98.
62 Ibid.
63 Ibid, at para 98.
64 Ibid, at para 99.
65 Ibid, at para 93 (emphasis added).
66 See Ahdar and Leigh, Religious Freedom, pp 173–175, for criticism of this dichotomy.
67 See Ahdar and Leigh, Religious Freedom, pp 163–165.
68 Marriage Commissioners, 2011 SKCA 3 at para 146 (Vancise JA concurring) (emphasis added).
69 Ibid, at para 123.
70 Ibid, at paras 123–124.
71 Trotter, G, ‘The right to decline performance of same-sex civil marriages: the duty to accommodate public servants – a response to Professor Bruce MacDougall’, (2007) 70 Saskatchewan Law Review 365–392Google Scholar at 385.
72 Ibid, p 385.
73 Ibid, pp 366–367, 392.
74 Ibid.
75 Marriage Commissioners, 2011 SKCA 3 at para 45.
76 MacDougall, B, ‘Refusing to officiate at same-sex civil marriages’, (2006) 69 Saskatchewan Law Review 351–374Google Scholar at 358.
77 Trotter, ‘Right to decline’, p 374.
78 Ibid.
79 MacDougall, ‘Refusing to officiate’, p 365.
80 Trotter, ‘Right to decline’, p 371.
81 Marriage Commissioners, 2011 SKCA 3 at para 142.
82 Ibid (emphasis in original).
83 Ibid.
84 See Ahdar and Leigh, Religious Freedom, ch 10.
85 Marriage Commissioners, 2011 SKCA 3 at para 147.
86 Ibid at para 148.
87 Ibid.
88 Marriage Act (Prince Edward Island), RSPEI 1988, c M-3, s 11.1 (added by An Act to Amend the Marriage Act, SPEI 2005, c 12, s 7. The section reads: ‘11.1 For greater certainty, a person who is authorized to solemnize marriage under this Act may refuse to solemnize a marriage that is not in accordance with that person's religious beliefs.’
89 Equal Marriage: the Government's response (London, 2012)Google Scholar at para 1.1.
90 Section 1.
91 Equal Marriage, at paras 4.19–4.20.
92 See ibid at paras 1.4 and 4.21–4.23.
93 Ibid at paras 1.3 and 4.18–4.27.
94 Maria Miller, HC Deb 5 February 2013, vol 558, col 129.
95 Marriage (Same Sex Couples) Act 2013, s 2(4).
96 Maria Miller, HC Deb 11 December 2012, vol 555, col 156.
97 Ibid.
98 Marriage (Same Sex Couples) Act 2013, s 1(5).
99 Ibid, s 2(5)(6). Section 110 of the Equality Act 2010 provides that a person does not contravenes 110 if that person does not conduct an SSM. Schedule 3 to the Equality Act (services and public functions) now has a new Part 6A that contains the exemption for SSM, viz: ‘25A(1). A person does not contravene section 29 only because the person – (a) does not conduct a relevant marriage’.
100 See eg Robert Flello (Lab), HC Deb 5 February 2013, vol 558, col 146; Jim Shannon (Democratic Unionist), HC Deb 5 February 2013, vol 558, cols 166–167.
101 HC Deb 5 February 2013, vol 558, cols 144–145 (emphasis added).
102 Ibid, col 152.
103 Stewart Jackson (Con), HC Deb 5 February 2013, vol 558, col 201.
104 HC Deb 5 February 2013, vol 558, col 180.
105 Hugh Robertson (Con), HC Deb 28 February 2013, vol 558, col 280.
106 Such as Sir Gerald Kaufman (Lab), HC Deb 5 February 2013, vol 558, col 125.
107 As noted, eg, by Lord Alli, HL Deb 19 June 2013, col 274.
108 Maria Miller, HC Deb 11 December 2012, vol 555, col 156.
109 Margot James (Lab), HC Deb 5 February 2013, vol 558, col 163.
110 Quoted in the speech by Hugh Robertson (Con), HC Deb 28 February 2013, vol 558, col 280.
111 Maria Miller, HC Deb 11 December 2012, vol 555, col 156.
112 Maria Miller, HC Deb 5 February 2013, vol 558, col 131 (quoting ‘the eminent QCs Lord Pannick, Baroness Kennedy and Lord Lester’).
113 HL Deb 4 June 2013, col 1067.
114 Ibid, col 1070.
115 J Bingham, ‘First couple consider legal challenge to Church's gay marriage opt-out’, Daily Telegraph, 2 August 2013.
116 Jim Shannon (Democratic Unionist), HC Deb 28 February 2013, vol 558, col 292.
117 Eg Jim Shannon HC Deb 5 February 2013, vol 558, col 165; Graham Brady (Con), HC Deb 5 February 2013, vol 558, col 172.
118 [2010] ECHR 995 at paras 101–110.
119 Ibid at para 93.
120 Ahdar and Leigh, Religious Freedom, ch 11, esp pp 377–378, 396–399.
121 Sindicatul ‘Păstorul Cel Bun’ v Romania, App no 2330/09 (ECtHR, 9 July 2013) at paras 162–168.
122 Ibid at para 4 per Wojtyczek J (concurring).
123 HL Deb 3 June 2013, col 997.
124 The first version (Amendment 11) was moved and debated at length at the Public Bill Committee stage on 26 February 2013 (HC Deb, vol 558, col 220). The revised version was debated on 20 May 2013 (ibid, col 926 et seq). There is a useful summary in the House of Lords Library Notes, Marriage (Same Sex Couples) Bill (HL Bill 29 of 2013–14), 30 May 2013, LLN 2013/011.
125 Eweida v United Kingdom, App nos 48420/10, 59842/10, 51671/10 and 36516/10 (ECtHR, 15 January 2013).
126 London Borough of Islington v Ladele [2008] EAT Case No UKEAT/0453/08/RN (10 December 2008); Ladele v London Borough of Islington [2009] EWCA 1357; [2010] 1 WLR 955 (CA).
127 Ladele's religious discrimination claim had been upheld at first instance by the Employment Tribunal: Ladele v London Borough of Islington [2008] ET, Case No 2203694/2007 (20 May 2008). For further analysis see Ahdar and Leigh, Religious Freedom, pp 356–357.
128 HC Deb 20 May 2013, vol 563, col 926.
129 Ibid.
130 David Burrowes (Con), HC Deb 20 May 2013, vol 563, col 929.
131 Jim Shannon, HC Deb 26 February 2013, vol 536, col 232; David Burrowes, HC Deb 20 May 2013, vol 563, col 929. The conscientious objection exemption for medical practitioners is in s 4 of the Abortion Act 1967.
132 HC Deb 26 February 2013, vol 536, col 225.
133 Kate Green (Lab), HC Deb 26 February 2013, vol 536, col 226.
134 Stephen Williams (Lib Dem), HC Deb 20 May 2013, vol 563, col 934. This overlooks the fact that registrars also attend to the registration of birth and deaths, hence their full title.
135 HC Deb 20 May 2013, vol 563, col 966.
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