Posts by Keir Leslie
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Hmm the thing is, the Canadian Supreme Court found in Re Same Sex Marriage that the Canadian Charter (their BORA analogue) would stop the government compelling clergy to perform civil or religious marriage contrary to their beliefs, without relying on an s29 equivalent. (One way to look at it might be to say they found an s29 equivalent was required, kinda sorta.)
Now obviously that's not a NZ case, & so you need to be careful.
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Up Front: The Up-Front Guides: The…, in reply to Tess Rooney,
You wouldn’t, and you can’t, is the short answer.
(The long answer is that there is little prospect of any NZ court compelling Catholic clergy to solemnise marriages that are contrary to Catholic belief, because of s29 of the Marriage Act and the religious freedom parts of the BORA, Re Same Sex Marriage is quite convincing, in my opinion.)
If you were to compel people it would be the same way you enforce all the laws of NZ.
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(*This may not, from subsequent discussion, be true. This seems very confused. But that’s irrelevant to Angus’s point, because he says people are talking about FORCING celebrants to marry people, and no-one is.)
I think I/S is talking about forcing celebrants to marry people, and I think he’s wrong. I think it’s really important to be clear here, because this could end up being quite an awkward point.
I also don’t think the law is that confused at the moment. I mean, I could be wrong, and we could see drastic changes in the near future following the passage of the Bill and some exciting court cases, but at present I think it’s clear that some kinds of discriminatory behaviour by marriage celebrants are legal.
This is probably where I/S lays out his argument clearest:
Actually, they are forced to conduct them, thanks to ss3(b) and 19 of the BORA, and the civil nature of marriage in New Zealand. Any marriage celebrant who refuses to solemnise the marriage of a non-Catholic is unlawfully discriminating on the basis of religion, and any marriage celebrant who refuses to solemnise the marriage of someone who has been previously divorced is unlawfully discriminating on the basis of family status. If that celebrant is a Catholic priest (and Catholic priests are celebrants by default for historical reasons), then they’re effectively writing a large cheque on behalf of the Pope.
But this contradicts:
Section 29 of the 1955 Act enacts that a marriage licence authorises, but does not oblige, a marriage celebrant to solemnise the marriage to which it relates. Thus a minister is left free to decline, on conscientious grounds, to marry, eg a couple whose previous marriages have been dissolved, their former spouses being still alive.
Family Law Service (online looseleaf ed, LexisNexis) at [1.4].
Now, I/S refers to Canadian cases. I assume it’s Re: Marriage Commissioners Appointed Under The Marriage Act, 2011 SKCA 3. But there are important differences. That case did not consider the duties of marriage celebrants, but marriage commissioners, who are a special class of celebrants that does not include clergy. Further, there does not appear to a a s29 equivalent in the Saskatchewan act.
In fact, the Saskatchewan court starts from the presumption that clergy can not be made to marry same sex couples: Re Marriage Commissioners at [10]. This is because there’s Canadian Supreme Court authority ( Reference re Same-Sex Marriage 2004 SCC 79) holding per curiam, at 58 that:
It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter.
And the court states at 60 this extends to both ``civil and religious marriages’’.
And of course both those cases assume the primacy of the Charter. In New Zealand, if there’s a conflict between the Marriage Act and BORA, the Marriage Act will stand: Quilter v AG.
To sum up: in my opinion, there’s highly persuasive precedent from the Canadian Supreme Court that any compulsion to perform civil or religious marriages contrary to religious belief would violate freedom of religion, and further, even if the rights analysis went the other way, it still wouldn’t trump the Marriage Act.
Sorry for the length! I have things I really ought be doing, so instead you get a possibly entirely misguided discussion here. I am sure there are people who actually have a clue about this, and I would welcome correction.
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Except I/S say it is likely that Bob is perhaps onto something here.
With due respect, I would submit that I/S is wrong in that. The Marriage Act doesn't require a celebrant to marry a couple if they don't want to, and I think that very probably includes for reason that would be discriminatory under the HRA --- for instance, divorced status. There's no reason to suppose that Wall's Bill would change that.
(It is also important to be careful, when discussing BORA & the HRA, of simply assuming that the right against discrimination is the only right here. People do have the right to freedom of religion, and that includes celebrating marriage according to their religion, and not celebrating marriages contrary to it. )
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Because officiating marriages (as opposed to weddings) is a public function conferred by law, not a private, religious one.
But s29 of the Marriage Act specifically does not require celebrants to solemnise marriages. It's a public function, yes, but there's an out.
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Up Front: The Up-Front Guides: The…, in reply to Idiot Savant,
Remember in interpreting that that you need to do so in a manner consistent with the BORA. Which obviously means that it will not permit discrimination on the basis of grounds prohibited by the HRA
I think that’s wrong. If it can be read consistently, then it will be, but s4 of BORA provides that if it can’t be it stands — Quilter v AG being the authority on this point, of course. I think at the moment the general view is that the Marriage Act does permit celebrants to discriminate on grounds prohibited. (After all, the Marriage Act is arguably inconsistent with BORA anyway.)
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The cycling had lots of complaints about coverage.
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Hard News: Christchurch: Is "quite good"…, in reply to BenWilson,
Hah! I left out the bit of that post that was a map of how my tram system would work!
Christchurch is pretty well suited to trams. If you look at the way the city is, it's clearly still got the memory of the old tram system in it.
Heavy rail might be a better bet for Rolleston/Belfast, but I'd personally like to see a tram network in Chch.
I do think those reasons above are partly why people are a bit dark on trams.
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Up Front: The Up-Front Guides: The…, in reply to Megan Wegan,
It’s quite interesting, really. I am not sure what the actual position is.
A refusal to celebrate themed weddings doesn’t seem discriminatory. A refusal to marry divorced people does. A refusal to marry Catholics does. A refusal to marry Japanese people does.
(Those are all prohibited grounds of discrimination in the HRA.)
But I think that it is currently thought a refusal to marry divorced people is legal, and then why not the rest? Too hard for me to understand at any rate.
Obviously no-one wants to be married by someone who’d rather not, but there may well be cases where there is only one celebrant available. Common-law marriage is an option there I guess, but.
[ETA: Also don’t suppose you could force someone to perform a civil ceremony on its own anyway. What if they say: well, can’t do civil ceremony, that’s against my beliefs, and I can’t perform the religious one in this case because it’s also against my beliefs?]
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Rail is off the table, is one problem. The government doesn't want them. And so that is that.
Light rail (i.e trams) was useless as public transport when it was a pointless heritage thing here. So I think that gives it a bad name. And then the proposed light rail to the airport was kinda odd and monorail-y.