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Same-Sex Marriage and Religious Exemption under the Marriage Act: Where Does Section 29 Leave Religious Objectors?

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posted on 2021-11-14, 00:49 authored by Wilson, Simon Matthew

This paper analyses the implications of section 29(1) of the Marriage Act 1955 for marriage celebrants wishing to refuse to solemnise same-sex marriages on religious grounds. Section 29(2) of the Marriage Act (as amended in 2013) allows a limited religious exemption for some celebrants, but not all are covered by this provision. Those not included (namely independent celebrants) can only refuse to solemnise a marriage if section 29(1) allows such a refusal. This paper asserts that when solemnising marriages, celebrants perform a ‘public function’ and are therefore subject to human rights obligations arising from the New Zealand Bill of Rights Act 1990 (NZBORA). These obligations are not overridden by section 29(1), so a celebrant can only refuse to solemnise a marriage if NZBORA allows this. A refusal to solemnise a same-sex marriage on religious grounds limits the right to freedom from discrimination in a way that is demonstrably justified in a free and democratic society, and thus permitted by NZBORA. Section 29(1) therefore provides a broader protection for celebrants than section 29(2), allowing all celebrants to refuse to solemnise same-sex marriages on religious grounds.

History

Copyright Date

2013-01-01

Date of Award

2013-01-01

Publisher

Te Herenga Waka—Victoria University of Wellington

Rights License

Author Retains Copyright

Degree Grantor

Te Herenga Waka—Victoria University of Wellington

ANZSRC Type Of Activity code

970118 Expanding Knowledge in Law and Legal Studies

Victoria University of Wellington Item Type

Research Paper or Project

Language

en_NZ

Victoria University of Wellington School

School of Law