How did this become about the "rights" of churches to exclude people from their rites?
That doesn't really sound that crazy to me. Are churches public or private institutions? I don't know the answer.
Interesting debate, one that seems likely to remain entirely hypothetical, because people generally want their celebrant to be in their corner, rather than someone who has a fundamental problem with them. If they really did push on through regardless, and try to make some old homophobe marry them, then I'd expect it to end in tears all round. Might be worth doing anyway, to make the point, but it would be an unusual kind of person that wanted that kind of thing on their wedding day.
The change I would like to see (which is not a part of the bill we were once discussing) is that Christian ministers do not automatically become civil celebrants on ordination. That, I think, would make it much clearer that being a civil marriage celebrant is not a religious function, ergo not a matter of religious freedom. There's nothing to stop them applying to become celebrants just like anyone else, of course - what they'd be losing would be a privilege, not a right.
By "nothing to stop them applying to become celebrants" I assume you mean they'd be free, whilst acting as a civil functionary, to refuse to marry those that do not conform with their religious beliefs. Because otherwise that whole religious belief structure thing would be stopping them from applying.
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. )
One nit pick. I disagree that churches do weddings but the State does marriage. In the Catholic Church the sacrament (ie. the ritual) is marriage. Whether the State recognises it or not isn't the point.
Suppose we split civil and religious marriage, if it were up to me I'd have my Catholic marriage and then wait until we considered defacto by being together. Although I'm not sure how I'd do the name change thing.
I think reducing religious marriage to a wedding is really misconstruing how religions view their own theology and rituals.
I assume you mean they’d be free, whilst acting as a civil functionary, to refuse to marry those that do not conform with their religious beliefs.
I do believe it has already been established that celebrants are not required to marry every couple who comes to them with a marriage licence, and that there are plenty of perfectly legal reasons to decline to marry a couple.
Because otherwise that whole religious belief structure thing would be stopping them from applying.
Only if you assume that all forms of religious belief include the belief that homosexuality and gay marriage are sinful. Religious belief is far more diverse than that, and I'm pretty sure religious gay couples would be able to find a person of the cloth willing to marry them.
If they really did push on through regardless, and try to make some old homophobe marry them, then I’d expect it to end in tears all round.
Oath. I’ve seen clergy behave badly when they want to be doing it.
The Catholic priest who married two of my friends was terrible. Banged on about church dogma and even had a rant about the evils of same-sex marriage. I dread to think how someone like that would respond to being compelled to perform one. You'd have to be a glutton for punishment. And not in a sexy way.
Angus: what Chris said. Adding that, just like everyone else, they'd need to pass the DIA vetting process.
It's also worth remembering that a couple doesn't just turn up to a celebrant with a marriage license. The license has the celebrant's name on it. This can be changed, though, if for example the nominated officiant is ill.
Before the couple fills out the application, there's meetings and discussions and figuring out if couple and celebrant is "compatible". So, no one can come to me and say "I demand you marry me, you're on the list and you have to".
The church is sanctioned by the state to officiate a marriage ceremony. The rites the church use to do that are not.
try to make some old homophobe marry them
more likely to be someone reflecting an organisation's stance than a personal one
The Catholic priest who married two of my friends was terrible. Banged on about church dogma and even had a rant about the evils of same-sex marriage.
Yup, I heard a lot of "blah blah, holy, blah blah, sacrament, blah blah, God" at my wedding. But I wasn't refused, despite being at the atheist end of agnostic. He wasn't warm to me either, but he was even more of a grumpy old bugger to the devout Catholics, speaking harshly during the rehearsal to some of them for appearing to enjoy themselves. I presumed that was just how things went down in their church. Couldn't see the appeal myself, but it was important to my wife. The venue was pretty, and free, which was handy, since it was an expensive time of my life.
In the Catholic Church the sacrament (ie. the ritual) is marriage. Whether the State recognises it or not isn’t the point
Oddly enough, Tess, it’s a point the Catholic Church is vocally disinclined to grant to anyone else. The hierarchy has a hell of a lot to say about civil marriage it doesn’t recognize for anyone – and, as Megan linked to, where teh gayz are concerned in the most floridly grotesque language.
Seems to me that a dog collar doesn’t give you a divine right to have it both ways. It certainly doesn’t give you the right to demand special deference in the public square.
BTW, I’ll be damned if I can figure out how my parents got married in a Catholic Church considering my father was an Anglican – and remained one the rest of his life. (Though he also made it perfectly clear that it was a matter of total indiference if any children were raised Catholic. And here I am.) The priest was a family friend, and I gather my grandparents made it quite clear that any nonsense about the groom’s race, religion or age would not be well received. Let’s just say, Nanna and Poppy made a downright terrifying tag-team when required.
Yes that's true, but the sacrament is more real than a human legal construct. If you believe in God then He is a higher authority than the State. It's called "the sacrament of marriage" not a "sacrament of a wedding".
The sacrament is far older than our State.
The sacrament is far older than our State
And pair-bonding rituals are a hell of a lot older than Christianity. Not that older necessarily means better. Slavery is older than emancipation.
the sacrament is more real than a human legal construct
…to you . To me, what’s real is the people and their relationship. But the secular state only deals in the legal construct. Laws tell us what we can do, not how to feel about it.
The hierarchy has a hell of a lot to say about civil marriage it doesn’t recognize for anyone
Re: not recognizing civil marriage - that is absolutely not true.
The Church recognizes it for what it is, a civil secular marriage. What the Church does not do is call a civil secular marriage a Sacrament where the man and woman become one flesh because of God (and thus they can not be divorced). That's why Kidman could marry again in a church because her first marriage was not Sacramental.
Marriage as an institution was created by God for humanity when Creation began. That the State recognizes it is just a reflection of the genuine truth of marriage. Other religions tap into this divine truth when they perform marriage.
Now I acknowledge that many people disagree with the above paragraph, but I think it is factually true. Marriage is traditionally how we build family and the family is the base cell of society. Now I'm not talking Mum, Dad and the 2.4 kids, but I am talking about kinship bonds created through marriage and birth. It's both biological and relational. My mother (who lives with us) is related by blood through her grandchildren to my husband's family. Marriage creates family bonds. When God unites a man and a woman in Sacramental marriage the family bond is permanent.
What I think is that the State should get out of the marriage business completely. Our society is forming families freely with many people coming together for a while and then breaking up again, some marrying and some not. Many parents aren't married at all and marriage is no longer a social requirement for sex and children legitimized by society.
The whole point of the State to get into marriage in the first place was to ensure property rights, to make sure there wasn't bigamy and to prove legitimacy of children and inheritance. We no longer legally need marriage specifically to accomplish these things, so there is no legal reason for the State to have anything to do with it.
Lets be honest, the religious meaning of marriage was lost in wider society not by "teh gayz" but by heterosexuals when they started using contraception and getting divorces. The debate was lost _decades_ ago and GLBT marriage makes perfect logical sense after that.
My preference would be for couples (or polygamous groups) to form their own unions in their own way. The State can use the defacto legislation to deal with property division in breakups (or people can create their own agreements) and the Family Court can deal with custody of children if needed. This way people can do what they want. Muslim men can have several wives, or people can have group relationships. Couples of any gender or sexuality can express their love the way they want to. This way people can create a union that means what they need it to mean, maybe for life, maybe for the life of the love.
I acknowledge that many people disagree with the above paragraph, but I think it is factually true
Believing something does not make it a fact. Facts must be objectively verifiable or they aren't facts.
What I think is that the State should get out of the marriage business completely.
Religions don't tell the secular State what to do, that's what secular means. You have your own religious understanding of what marriage means, fine. But you don't get to define it for the rest of us.
And it would be nice if you could recognise that non-Catholics can form meaningful family relationships. You expect tolerance, how about giving some.
Re: not recognizing civil marriage – that is absolutely not true.
Absolutely true – though I grant a plain text reading of applicable canon law is politically inconvenient. A couple who has married without “canonical form” has entered into a marriage that neither valid nor licit, and later convalidation of such marriages is slightly more complex that saying “whoopsie, our bad!”
Believe me, this is not a subject I’m inclined to make shit up about. You see, I actually take people like this seriously enough to expect a tad better than sloppy, disingenuous concern-trolling. (Especially from someone licensed by the Catholic Church to teach theology to seminarians.) I’m less than entirely confident that my respect is repaid.
Marriage as an institution was created by God for humanity when Creation began. That the State recognizes it is just a reflection of the genuine truth of marriage.
Ah, creationism. Bless.
Not that older necessarily means better. Slavery is older than emancipation
Kidman could marry again in a church because her first marriage was not Sacramental
How very convenient. The Catholic Church has a long tradition of absolute rules becoming infinitely flexible when money and/or power is involved.
How very convenient.
And which in no way disproves my contention that the Church simply does not recognize any civil marriages (or Scientologist rites) in terms of doctrine or canon law. Kidman’s civil divorce was viewed as a civil termination of an ilicit marriage, and obviously was so trifling a matter she didn’t even require an annulment. Again, the simple statement of fact may be politically inconvenient at the present moment but, to use a technical term, WIDDUMS.
And frankly, Tess, if the Catholic Church wants to go concern-trolling about the horrors of civil same-sex marriage it's hardly dirty pool to point out that it doesn't actually have excessive regard for the institution of civil marriage in the first place.
If you are refused a social welfare benefit, for whatever reason, this is recorded and will be a hurdle to gaining that benefit. If you are refused a marriage licence by a church, this is not a hurdle in any way whatsoever to gaining a marriage licence ever.
By your reasoning would a comment deleted from a website be a violation of free speech rights?
I only suggested a civil servant personally refusing to grant a benefit (on genuine, deeply held religious grounds). They would, of course, helpfully direct the applicant to the next case manager, who would grant it instead. This personal refusal is not a hurdle in any way whatsoever to gaining a benefit ever. By your reasoning, why can they not do this?
(*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 . 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.
Canon 1055.2 - it only applied to baptised persons. If you're Catholic and you choose a civil marriage over a Sacramental one then yes, it's not valid or licit. Which was why Kidman could marry in the Church 2nd time around.
If a Muslim gets married by an imam or an atheist by the State they still have a real marriage.
I'm not a creationist a la Evangelicals. If you want to know how the universe got here ask science. I was using the term "Creation" in a theological sense. I think Genesis is literal only in a theological way, it's certainly not a scientific text. Sorry if I was unclear.