INTRODUCTION
Same-sex marriage (‘SSM’) has recently been legalised in several Western nations and is likely to become so in others.Footnote 2 A recurrent issue has been the rights of those who usually solemnise marriages to refuse to do so in the case of same-sex couples. Some religious ministers, clergy, marriage celebrants, commissioners and registrars may have a conscientious objection to conducting marriage ceremonies for people of the same sex. Their objection is usually grounded in sincere religious beliefs about the propriety of homosexual and lesbian relationships.
This article considers the attempts to craft an exemption for such marriage celebrants based on solicitude for their religious convictions. My starting point is that no-one ought to be forced to marry a couple against that person's religious beliefs or conscience. Where the celebrant refuses to do so, he or she should be permitted to do so by the state. Ideally, the law ought to make it clear that there is no legal obligation on celebrants in such circumstances to conduct SSMs. Likewise, the relevant anti-discrimination laws that prohibit discrimination on the grounds of sexual orientation ought to explicitly exempt marriage celebrants from performing SSMs.
Yet carving out a suitable exemption has proved rather harder to achieve than one might expect. This, at least, has been the experience in New Zealand, Canada, and England and Wales, the three jurisdictions that form the focus of this article.Footnote 3 I will not consider the case for exemption for those who have a conscientious objection to participating in SSM aside from the actual solemnisation ceremony itself. Thus, caterers, photographers, musicians, florists, those who hire out reception halls or rent bridal and honeymoon suites, and so on, remain a topic for further investigation.Footnote 4
The article first examines the exemption provided for in New Zealand. The focus then turns to Canada and a major case analysing the constitutionality of conscience exemptions for state marriage celebrants. The path towards legalisation of SSM in England and Wales is then traced and the complex exemption mechanism is explained. I close with some concluding thoughts.
NEW ZEALAND
New Zealand became the thirteenth nation to legalise SSM when it passed the Marriage (Definition of Marriage) Act 2013 on 19 April 2013.Footnote 5 Preserving religious freedom for those church ministers and other marriage celebrants who did not wish to conduct SSMs featured prominently in the public debate.Footnote 6 The Bill's promoter,Footnote 7 the Labour Party MP Louisa Wall, gave repeated assurances that religious liberty would be respected: ‘Because we have freedom of religion in New Zealand, no religious body is bound to marry a couple if that marriage is at odds with its religious belief.’Footnote 8 The exemption in its final form reads:
29. Licence authorises but not obliges marriage celebrant to solemnise marriage
(1) A marriage licence shall authorise but not oblige any marriage celebrant to solemnise the marriage to which it relates.
(2) 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 solemnise marriages by an approved organisation, is obliged to solemnise a marriage if solemnising that marriage would contravene the religious beliefs of the religious body or the religious beliefs or philosophical or humanitarian convictions of the approved organisation.
Despite the Select Committee's hope that this section would suffice to assuage those with religious liberty concerns, a flaw still remains: the exemption is simply not worded widely enough.Footnote 9
First, marriage celebrants who are ‘independent’ – that is, not members of any of the listed religious bodiesFootnote 10 or any approved organisationFootnote 11 – are not protected. Yet some 45 per cent of marriages are conducted by these independent celebrants (with 23 per cent by registrars at a state registry office and 32 per cent by a church or approved organisation marriage celebrant).Footnote 12 Independent marriage celebrants are persons who ‘will conscientiously perform the duties of a marriage celebrant’ and ‘it is in the interests of the public generally, or of a particular community (whether defined by geography, interest, belief, or some other factor)’ that they be so appointed.Footnote 13 Such persons may well have beliefs that generate a conscientious objection to SSM. It was erroneous, therefore, for the Ministry of Justice to recommend that independent celebrants be excluded from the benefit of the conscientious objection exemption in section 29(2).Footnote 14 The Ministry's response was that, in contrast to ministers of religion, independent celebrants (and registrars) are appointed by the government ‘to perform a public function, not to promote their own religious or personal beliefs’.Footnote 15
Second, and perhaps even more importantly, ministers of religion of designated religious bodies may not be protected either. Ministers within tightly knit homogeneous denominations such as the Open Brethren, Seventh-Day Adventists or Elim (Pentecostal) Churches are not vulnerable. Rather, it is a religious minister whose more heterogeneous denomination is divided on gay marriage who may not be able to point to any authoritative ruling, precept, custom or teaching that states that only heterosexual marriage is acceptable. The mainstream Protestant denominations – Presbyterian, Methodist and Anglican – have struggled to formulate a clear policy on this matter.Footnote 16
The long-running battle over the ordination of gay clergy in the Presbyterian Church of Aotearoa New Zealand is a poignant reminder of how contentious matters of sexual practice and sexual orientation are.Footnote 17 At their 2012 General Assembly, Presbyterians passed a resolution affirming that the Church ‘upheld the historic Christian understanding of marriage as the loving, faithful union of a man and a woman’.Footnote 18 The Assembly narrowly declined, however, to adopt a proposal that would have prohibited ministers from administering marriage ceremonies between same-sex couples.
Other denominations have yet to grasp the nettle. The Anglican Church announced that its ministers may not conduct same-sex weddings pending a report to its next General Synod in May 2014.Footnote 19 Meanwhile, a conservative Anglican minister who declines to marry a gay couple is unable to point to any ruling of the regional or national diocese that states that marriage is only for opposite-sex couples. The blessing of the same-sex nuptials might contravene the religious beliefs of his own congregation or the sizeable conservative sector of New Zealand Anglicanism – but that is not the same thing. One MP commented that she would personally appear as a witness in support of any minister embroiled in litigation to state that that minister ‘had the right to deny a same-sex couple solemnisation of their wedding’.Footnote 20 But such a well-intentioned gesture would be largely ineffectual and little solace for any minister of religion who had to defend his or her position.
Even if the New Zealand Anglican Church should eventually decide that solemnisation of SSM is allowed, particular Anglican clergy who dissent from that official line ought to be protected. The right of religious freedom protects all who practise that faith, not just those whose beliefs accord with the official teaching of that denomination or group.Footnote 21 Those holding eccentric, idiosyncratic or even heretical religious beliefs – beliefs at odds with the majority of those of that faith, that are inconsistent with received church doctrine or contrary to the views of the church hierarchy (if any such hierarchy exists) – ought to be protected too. Religious freedom is not just for the ‘orthodox’ or for those who happen to abide by the views of the majority of co-religionists or the pronouncements of the ecclesiastical or ruling elite. Appellate courts have acknowledged this. The Supreme Court of Canada stated that: ‘An “expert” or an authority on religious law is not a surrogate for an individual's affirmation of what his or her religious beliefs are.’Footnote 22 The House of Lords observed:
The court is concerned to ensure an assertion of religious belief is made in good faith: ‘neither fictitious, nor capricious, and that it is not an artifice’ … But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its ‘validity’ by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant's belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual. … [R]eligious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising.Footnote 23
In the light of this I proposed an amendment to section 29(2):
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 that celebrant.
But this change was not adopted. So, for now, the position of conservative church ministers within the mainstream Protestant denominations remains precarious.
CANADA
In 2004 the Supreme Court of Canada was asked to hear a reference on the Federal Government's proposed legislation to extend marriage to same-sex couples. One of the four questions in Reference Re Same-Sex Marriage was ‘if the Proposed Act were adopted, religious officials could be required to perform same-sex marriages contrary to their religious beliefs’.Footnote 24 The Court was in no doubt:
If a promulgated statute were to enact compulsion, we conclude that such compulsion would almost certainly run afoul of the Charter guarantee of freedom of religion, given the expansive protection afforded to religion by s. 2(a) of the Charter … The performance of religious rites is a fundamental aspect of religious practice. 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.Footnote 25
The Court also determined that the legalisation of SSM was consistent with the Canadian Charter of Rights and Freedoms 1982.Footnote 26
The bill to legalise SSM, Bill C-38, was introduced to the House of Commons on 1 February 2005 and was passed by that House on 28 June 2005, by 158 to 133 votes, with 32 MPs abstaining.Footnote 27 The Senate passed the Bill by 47 to 21 votes on 19 July 2005, and it received the Royal Assent on 20 July 2005. The Civil Marriage Act 2005Footnote 28 defines civil marriage as ‘the lawful union of two persons to the exclusion of all others’.Footnote 29 An attempt by the incoming Conservative Government to restore the traditional opposite-sex definition of marriage in December 2006 was defeated in the House of Commons.Footnote 30
Religious freedom for religious ministers featured prominently in the parliamentary debates on Bill C-38. The Prime Minister and Liberal Party leader, Paul Martin, addressed this concern in his second reading speech: ‘the government's legislation affirms the charter guarantee: that religious officials are free to perform such ceremonies in accordance with the beliefs of their faith’.Footnote 31 The Leader of the Opposition and Conservative party leader, Stephen Harper, was not convinced: ‘The so-called protection that the government has offered for even basic religious freedom is, frankly, laughably inadequate.’ The Bill provided ‘one meagre clause to protect religious freedom, a clause which states that religious officials will not be forced to solemnize marriages’.Footnote 32 Yet, he continued, ‘the Supreme Court of Canada has already ruled that this clause is ultra vires. It falls within the provincial responsibility for the solemnization of marriage.’Footnote 33 The Government's proposal, in his view, fell well short of comprehensive protection. Harper proffered the following further protections to anticipate future challenges:
Parliament can ensure that no religious body will have its charitable status challenged because of its beliefs or practices regarding them. Parliament could ensure that beliefs and practices regarding marriage will not affect the eligibility of a church, synagogue, temple or religious organization to receive federal funds, for example, federal funds for seniors' housing or for immigration projects run by a church. Parliament could ensure that the Canadian Human Rights Act or the Broadcasting Act are not interpreted in a way that would prevent the expression of religious beliefs regarding marriage.Footnote 34
In the end, none of these additional protections floated by the Opposition were taken up – bar one. The one concession was a new clause in the Preamble (when the Bill returned from the Legislative Committee) to assuage concerns about freedom of expression: ‘Whereas it is not against the public interest to hold and publicly express diverse views on marriage.’ Even here, the wording is somewhat coy, preferring the term ‘diverse’ to ‘traditional’, ‘conservative’ or some other epithet indicating positive endorsement of heterosexual-only marriage.
The Civil Marriage Act, in its final form, states:
Preamble
WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs; . . .
3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.
3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.
Originally, the Bill just contained section 3, the ‘one meagre clause’ that Harper alluded to above. Section 3.1 was added after the Bill came back from the Legislative Committee.Footnote 35
Clearly, officials of religious bodies are protected. Are registrars (or, as they are called in Canada, marriage commissioners) also protected? This question was explored by the Saskatchewan Court of Appeal in Re Marriage Commissioners appointed under the Marriage Act 1955.Footnote 36 The Saskatchewan Marriage Act provides that various listed religious clergy may solemnise marriages, as well as marriage commissioners appointed by the Minister. Following the legalisation of SSM, some marriage commissioners refused to solemnise SSM on the basis that they could not do so without violating their religious beliefs.Footnote 37 Mr Orville Nichols was one.Footnote 38 He lodged a human rights complaint against the Saskatchewan Government alleging religious discrimination under the province's human rights law. In turn, a human rights complaint was filed against him, alleging that he had acted in a discriminatory manner by refusing to perform an SSM ceremony. The Human Rights Tribunal upheld the latter complaint and Nichols lost his appeal in the Court of Queen's Bench.Footnote 39
Given this litigation, the Province submitted two questions to the Court of Appeal. The first concerned a proposed statutory exemption for commissioners appointed before the change in the law occurred, the so-called ‘Grandfathering Option’. The second question concerned an exemption for all commissioners regardless of when they were appointed, the ‘Comprehensive Option’.Footnote 40 The Grandfathering Option is below, while the Comprehensive Option is the provision below minus the words in bold:
28.1 (1) Notwithstanding The Saskatchewan Human Rights Code, a marriage commissioner who was appointed on or before November 5, 2004 is not required to solemnize a marriage if to do so would be contrary to the marriage commissioner's religious beliefs.Footnote 41
‘November 5, 2004’ is the date on which the Saskatchewan Queen's Bench struck down the ban upon SSM in Saskatchewan.Footnote 42 That court held that a denial of a marriage licence to a same-sex couple would violate their equality rights provided in section 15(1) of the Charter. Henceforth, marriage commissioners were instructed that they must perform SSM ceremonies. The Grandfathering Option is clearly a more narrowly tailored exemption designed to exempt those commissioners appointed before the date of the legalisation of SSM. But Nichols' hopes were to be dashed when the court observed: ‘Commissioners who were appointed before the Queen's Bench decision recognizing the legality of same-sex marriage in this jurisdiction are in no meaningfully different position than those appointed after the decision was rendered.’Footnote 43
The court first had to decide whether the exemptions infringed the Charter guarantee of equality. The purpose of the two options was to accommodate the religious beliefs of certain marriage commissioners and not to deny same-sex couples the right to marry. Footnote 44 Next, although neutral on the surface, did the options have the effect of denying same-sex couples equal protection or the benefit of the new law? They did. Gay and lesbian individuals would be treated differently from other people and this negative differential treatment was due to their sexual orientation.Footnote 45 Sexual orientation is not a ground mentioned in section 15 but has been recognised as a protected ground analogous to those enumerated in the section.Footnote 46 It was argued that the infringement would be minimal as a same-sex couple turned away by a commissioner could easily find another one prepared to officiate.Footnote 47 However, the court was not persuaded. This argument downplayed the serious offence that such a refusal might have upon a gay or lesbian person seeking to be wed. Further, it was possible that the pool of non-objecting commissioners might not be large enough to ensure same-sex couples' demands could be met, and this potential dearth of eligible commissioners would be exacerbated in remote rural areas.Footnote 48 The different treatment would also create a disadvantage by perpetuating prejudice about the worthiness of same-sex unions and this ‘would clearly be a retrograde step’.Footnote 49
Rather optimistically it was contended that the Supreme Court in Reference re Same-Sex Marriage had already determined that legislative initiatives of the sort at issue here passed constitutional muster. Did not the court say that the state could not oblige officials of any sort to solemnise same-sex marriages contrary to their personal religious beliefs?Footnote 50 This was, replied the Saskatchewan Court of Appeal, a misreading of the decision, for it was plain that the Supreme Court's approval of exemptions for ‘religious officials’ was referring only to ministers of religion holding formal positions in religious communities, and not to marriage commissioners.Footnote 51
Turning to the second stage of the Charter analysis: was the curtailment of the equality rights of same-sex couples justifiable in terms of section 1? The first requirement is that the objective of the impugned law must be of sufficient importance to warrant limiting a Charter right. The broad and important goal of both options was the accommodation of the religious beliefs of the marriage commissioners. One could characterise the goal of the options as the denial of the rights of same-sex couples, but that way of stating the objective was unhelpful.Footnote 52
The second requirement is the proportionality analysis. This subdivides into three matters. First, was there a rational connection between the impugned law and its objective? Exempting commissioners was clearly rationally connected to the goal of accommodating such commissioners' religious beliefs.Footnote 53 Second, did the law impair rights and freedoms as little as possible in order to meet its goal? Here the exemptions foundered. The court raised the possibility of a ‘single entry point’ system.Footnote 54 This corrals would-be married couples towards a bureaucratic official or some central office, rather than permitting them to contact a marriage commissioner directly:
What if the request for the services of a marriage commissioner involved completion of a form indicating, not just the time and place of the proposed ceremony, but also the genders of the two people planning to marry? … Assume too that the Director operated a simple internal system whereby a commissioner who did not want to perform same-sex marriage ceremonies because of his or her religious beliefs could make that fact known to the Director. In this sort of arrangement, the Director's office could reply to a request for marriage services by privately taking into account the religious beliefs of commissioners and then providing, to the couple planning to marry, a list of commissioners in the relevant geographical area who would be available on the planned date of the wedding and who would be prepared to officiate.Footnote 55
Counsel for the marriage commissioners conceded that this kind of procedure did represent a less restrictive means of attaining the objectives that the commissioners sought. It fell ‘within the range of reasonable alternatives’Footnote 56 and, in the court's view, did not appear to be ‘impractical, overly costly or administratively unworkable’.Footnote 57 The court cautioned that its endorsement of a single entry point system was ‘not necessarily a determination that any such system would ultimately pass full constitutional muster’.Footnote 58 Rather, the concrete features of any particular system would still need to be evaluated to see if it met the Charter standard.
The third inquiry seeks to determine whether the benefits of the impugned law are proportionate to the negative effects of it upon citizens' guaranteed rights. The salutary effect of the exemptions is that they permit marriage commissioners to avoid a violation of their consciences. But this was given modest weight, for reasons I will return to shortly. The deleterious effects upon same-sex couples, by contrast, loomed much larger. There was, again, the ‘perpetuat[ion of] a brand of discrimination which our national community has only recently begun to successfully overcome’.Footnote 59 Second, the denial of marriage by certain commissioners was ‘devastating’ to the individuals concerned and had a more generalised ‘ripple’ effect upon the gay community as a whole.Footnote 60 Third, the exemptions would ‘undercut the basic principle that governmental services must be provided on an impartial and non-discriminatory basis’.Footnote 61 Persons who ‘voluntarily chose to assume’ a public office, becoming part of ‘the apparatus of the state’,Footnote 62 could not expect to shape that office to conform to their personal scruples. Rather, the situation was the other way around: ‘Marriage commissioners do not act as private citizens when they discharge their official duties. Rather, they serve as agents of the Province and act on its behalf and its behalf only.’Footnote 63 It was then ‘readily apparent’Footnote 64 that the positive effects of the exemptions did not outweigh their negative effects and thus, the third aspect (like the second) of the proportionality analysis had not been satisfied.
In the balancing exercise the court gave rather short shrift to the benefits of respecting the commissioners' religious liberty. The following paragraph is telling:
in considering the benefits of the Options, it is also important to note that the freedom of religion interests they accommodate do not lie at the heart of s. 2(a) of the Charter. In other words, the Options are concerned only with the ability of marriage commissioners to act on their beliefs in the world at large. They do not in any way concern the freedom of commissioners to hold the religious beliefs they choose or to worship as they wish. This reality means the benefits flowing from the Options are less significant than they might appear on the surface.Footnote 65
For the court, the commissioners' interests ‘do not lie at the heart’ of this right. They are still entirely free ‘to worship as they wish’. This stance resonates with the tenuous distinction between ‘core’ and ‘peripheral’ religious beliefs and practices.Footnote 66 According to this view, declining to do one's everyday job because it offends one's religious scruples is regrettable but fairly ‘small beer’, because the commissioners can still attend their church, pray, read their bible and go about their usual avowedly religious rituals. Restricting an aspect of one's secular labour is insignificant compared with the circumscribing of the fundamental and patently ‘religious’ duties of one's faith. According to this blinkered conception of religious free exercise, the former is a mere indirect curtailment of a secondary or peripheral religious matter whereas the latter represents a direct incursion upon a primary or central religious activity.
In the court's understanding, the right to hold religious beliefs is acknowledged and, indeed, inviolable, but acting upon them is another matter. Here the perennial ‘belief/action’ distinction rears its unsightly head once more.Footnote 67 Acting upon one's beliefs must be circumscribed in the interests of society and to protect the rights of others. But do not be alarmed, for one still can hold to that belief. This mind-set, with its attenuated conception of religious exercise (protecting core but not peripheral religious matters, beliefs but not necessarily actions that manifest such beliefs), is made explicit in the concurring opinion of Smith JA:
Canadian constitutional jurisprudence has consistently distinguished between the right to hold certain beliefs and the right to act on those beliefs, particularly as one moves out of the fundamental area of religious rites and practices and when acting on a religious belief harms or infringes the rights of others.Footnote 68
From this narrow perspective, secular labour by a state-employed official is very far removed from rituals or liturgical conduct undertaken by a religious official. Smith JA emphasised that marriage commissioners were carefully devised by the legislature to be ‘non-religious, civil, as opposed to religious’ celebrants.Footnote 69 The legislation provided for a long list of religious celebrants, whereas marriage commissioners conducting a civil, non-religious ceremony were there as a distinctly secular alternative to cater for those who did not wish to have their marriage conducted in a religious setting or with any religious connotations.Footnote 70
The notion that marriage commissioners are state employees and therefore must conform to the state's juridical norms does not take the argument very far because another norm, alongside state impartiality in the provision of public services, is government accommodation of its civil servants' consciences. As Geoffrey Trotter puts it: ‘Rights-bearing citizens do not lose their human rights when they enter public employment.’Footnote 71 To focus exclusively on the state's obligation to same-sex couples is to neglect the position of the flesh-and-blood providers of the marriage services. Officiating is not (yet) done by ‘robots and computers’, and as long as the state acts through its citizens their rights must also be taken into consideration.Footnote 72 As a good employer, the state must attempt to make reasonable accommodation for the sincere religious convictions of its employees. To ignore the duty of reasonable accommodation is to adopt a stark, take-it-or-leave-it stance: religious commissioners must refashion their beliefs to agree with the state, or take their beliefs with them and leave government employment.Footnote 73 Rigid denial of an exemption for devout marriage commissioners would simply lead to the exclusion of religious persons from this branch of the public service, an outcome that seems at odds with the espoused political aim of tolerance and inclusion of all citizens.Footnote 74
The court believed that exemptions for marriage commissioners would be ‘a step that would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions’.Footnote 75 Bruce MacDougall charged that to only allow refusals to conduct SSM (and not refusals to marry, say, opposite-race or divorced couples) demonstrates that the state is not trying to accommodate religious consciences in general but rather it is ‘simply supportive of religious hostility to homosexuals, ie, homophobia’.Footnote 76 But this criticism is misplaced, for it conflates the state with its myriad employees.Footnote 77 The granting of an exemption for devout commissioners does not demonstrate that the state necessarily accepts the views of those commissioners. When the state allows doctors and nurses the right of conscientious objection from participation in abortion procedures, the state is not accepting or endorsing the stance of those objectors on the merits of abortion.Footnote 78 By permitting religious civil servants to opt out of conducting SSMs, the state does not, as MacDougall argued, in effect, accept the religious ‘version’ of the issue.Footnote 79 Rather, an accommodation transmits the message that the state has solicitude for the consciences of its employees. If anything, the legislature has already decisively rejected the religious stance on the issue by legalising SSM. An exemption is a departure from the official ‘version’ that SSM is now accepted. As for the accusation of homophobia, a physician who withdraws from abortion is not (one would hope) motivated by animus against the woman seeking the procedure, but is simply unable in good conscience to provide the service herself or himself.Footnote 80
Smith JA was puzzled as to how conducting a marriage for a same-sex couple infringed a devout marriage commissioner's religious freedom at all. He was unable to see how officiating at a civil ceremony carried any implication or connotation at all that the marriage commissioner who officiates necessarily approved of these types of union.Footnote 81 By stark contrast, refusing to perform an SSM ‘without doubt expresses condemnation of same sex unions and practices as socially harmful and perverse’.Footnote 82 Performing the ceremony when asked ‘might well be neutral [whereas] refusing to do so is an overtly discriminatory act’ that engenders psychological anguish and reinforces age-old prejudice.Footnote 83
As a matter of logic it is difficult to see how performing x is neutral while refusing to perform x is discriminatory and expresses condemnation of those seeking x. Furthermore, this approach overemphasises the external appearance of conduct at the expense of the internal attitude of the moral agent. For example, eating pork may well be a neutral act for most citizens but for certain people it violates deeply held religious beliefs. A central thrust of freedom of religion is protection of the individual's conscience and (subjective) religious sensibilities. It may be hard to comprehend how undertaking a secular task can be freighted with religious meaning but much mundane activity is religiously significant for many religionists.Footnote 84 So, to say that ‘The performance of a civil marriage by a marriage commissioner … is not a religious rite or practice’ and that ‘Nor does the requirement to do so limit or restrict religious belief’ is to miss the point.Footnote 85
Even if, continued Smith JA, the performance of SSMs by devout marriage commissioners did restrict their religious freedom, it would do so ‘only in a secondary way’ and the curtailment would arguably be ‘trivial or insubstantial, in that it is interference that does not threaten actual religious beliefs or conduct’.Footnote 86 And thus ‘to the extent that this is so, it does not even fall within the protection of s. 2(a) of the Charter’.Footnote 87 This simply demonstrates that the judge has an attenuated understanding of just what constitutes the manifestation of one's religion.
Although Saskatchewan rejected a statutory exemption for marriage commissioners, Prince Edward Island passed an exemption in 2005 permitting commissioners to refuse to solemnise SSMs.Footnote 88
UNITED KINGDOM
Following a public consultation on SSM which began in March 2012 – and which elicited 228,000 responses and 19 petitions, the largest response ever received to a Government consultationFootnote 89 – the Minister for Women and Equalities, Maria Miller, introduced the bill to legalise SSM in England and Wales on 24 January 2013. The Bill was given the Royal Assent on 17 July 2013. The Marriage (Same Sex Couples) Act 2013 states with stark simplicity that ‘marriage of same sex couples is lawful’.Footnote 90
Simplicity, however, is not a feature of the statutory provisions for clergy and other marriage celebrants who seek an exemption from conducting SSM on grounds of conscience. Churches expressed serious concerns at their right to refuse to marry same-sex couples. The Government's response was the so-called ‘quadruple lock’, a fourfold bundle of provisions designed to make it clear that clergy and other religious officials would not be compelled to conduct SSMs.Footnote 91 Part of the complexity is due to the special position of the Church of England as the established church.Footnote 92 This status means that its canons form part of the law of the land. The Church can amend or repeal primary legislation through a Measure passed by its Synod, provided that the Measure is later approved by Parliament and receives the Royal Assent. Most pertinently, its clergy are under a common-law duty to marry a parishioner in his or her parish church. The Church in Wales is still under a similar duty by virtue of its previously being established (it was disestablished in 1920).
The Government's report on the public consultation recommended that no religious organisation or its ministers be forced to conduct SSM ceremonies.Footnote 93 This assurance was consistently reiterated throughout the entire parliamentary passage of the Bill. The sponsoring Minister stated:
All religious organisations – whether they be Jewish, Muslim, Christian or any other – will be able to decide for themselves if they want to conduct same-sex marriages. The Bill provides for and promotes religious freedom through the Government's quadruple lock. These protections are absolutely carved on the face of the Bill and are the foundation on which the legislation is built.Footnote 94
The quadruple lock
The first of the four provisions to protect the religious freedom of marriage celebrants is an express non-compulsion provision. Part 2 of the Act, headed ‘Religious protection’, opens with section 2:
2. Marriage according to religious rites: no compulsion to solemnize etc
(1) A person may not be compelled by any means (including by the enforcement of a contract or a statutory or other legal requirement) to –
(a) undertake an opt-in activity, or
(b) refrain from undertaking an opt-out activity.
(2) A person may not be compelled by any means (including by the enforcement of a contract or a statutory or other legal requirement) –
(a) to conduct a relevant marriage,
(b) to be present at, carry out, or otherwise participate in, a relevant marriage, or
(c) to consent to a relevant marriage being conducted,
where the reason for the person not doing that thing is that the relevant marriage concerns a same sex couple.
The right to decline to conduct a ‘relevant marriage’ in section 2(2) refers to ‘a marriage between same sex couples’.Footnote 95
Second, the statute sets out an opt-in system so that religious organisations or individual ministers who wish to conduct marriages for same-sex couples will need to take positive steps before they can do so. It is unlawful for religious bodies or their ministers to marry same-sex couples unless the requisite opt-in requirements have been complied with. An ‘opt-in’ activity is further defined in a detailed table in section 2(3). If a religious organisation has decided not to opt in, then none of its ministers will be able to conduct an SSM.Footnote 96 If such an organisation has chosen to conduct SSM, its individual ministers are still under no compulsion to conduct one unless they decide to do so.Footnote 97
Third, there are two special provisions to safeguard the position of the established church. First, the Church of England's current stance on SSM (opposing it) might fall foul of centuries-old legislation, the Clergy Act 1533, which requires that church law be consistent with the law of the land. So when SSM was legalised the Church's position might have violated ordinary secular law and been subject to nullification on that basis. A special provision, however, would avert this clash and allow the inconsistency between the Church's no-SSM stance and the law's affirmative policy in favour of SSM to continue. Thus, we have section 1(3):
1(3) No Canon of the Church of England is contrary to section 3 of the Submission of the Clergy Act 1533 (which provides that no Canons shall be contrary to the Royal Prerogative or the customs, laws or statutes of this realm) by virtue of its making provision about marriage being the union of one man with one woman.
Then, there is explicit recognition that it is illegal for the established church to marry same-sex couples:
1(4) Any duty of a member of the clergy to solemnize marriages (and any corresponding right of persons to have their marriages solemnized by members of the clergy) is not extended by this Act to marriages of same sex couples.
The term ‘a member of the clergy’ is a clerk in holy orders of the Church of England or the Church in Wales.Footnote 98
Finally, the Equality Act 2010 was amended to state explicitly that it is not unlawful discrimination for a person to refuse to conduct an SSM.Footnote 99
The Unpicking of the Locks?
Many MPs foresaw the potential for a disappointed same-sex couple to take a successful claim to the European Court of Human Rights.Footnote 100 For instance, Sir Tony Baldry cautioned:
there is an inevitable degree of risk in all this, given that it would ultimately be for the courts, and in particular the Strasbourg court, to decide whether provisions in the legislation are compatible with the European convention on human rights. There is absolutely no doubt that once marriage is redefined in this very fundamental way, a number of new legal questions will arise and no one can be sure what the eventual outcome will be. The Government believe that this is a risk worth taking. The Church of England does not.Footnote 101
‘It is abundantly plain to most Conservative Members’, charged Sir Roger Gale in blunter fashion, ‘that the product of the Bill will end up before the European Court of Human Rights and that people of faith will find that faith trampled upon.’Footnote 102 The Bill was a veritable ‘Pandora's box of endless litigation’, warned another.Footnote 103 The Labour MP Michael McCann, blasted:
I am damn sure – as sure as the sun rises in the morning – that a same-sex couple will go to a church or synagogue and demand to be married, their demand will be refused and they will go to court; and we in turn will have to wait to see what new case law is created. By that time, it is possible that none of us will be serving in the House – we may have left politics altogether or indeed left this mortal coil – but in that set of circumstances people will look back and ask, ‘How did we get into this mess?’ They will look back in Hansard and say, ‘It's because we made a bad law in 2013, and some politician said at the time that there was a quadruple lock, underpinned by case law.’Footnote 104
The Bill's supporters conceded that no-one could totally rule out future litigation.Footnote 105 Those who sought ‘a cast iron guarantee’Footnote 106 were seeking the impossible.Footnote 107 Yet, it was the Minister herself who had fuelled such an expectation when she confidently assured the House that ‘the system of locks will iron-clad the protection’ of religious bodies.Footnote 108 Others were only a little less categorical and relied upon the advice of the Attorney-General to the effect that ‘case law in the European Court of Human Rights makes it infinitesimally unlikely that any such challenge would succeed’.Footnote 109 Lord Pannick assured the Public Bill Committee by written memorandum that: ‘For the European Court of Human Rights to compel a religious body or its adherents to conduct a religious marriage of a same sex couple would require a legal miracle much greater than the parting of the Red Sea.’Footnote 110 As the Minister explained, ‘the Government's legal position has confirmed that, with appropriate legislative drafting, the chance of a successful legal challenge through domestic or European courts is negligible’.Footnote 111 And again, ‘It is simply inconceivable that the Court would require a faith group to conduct same-sex marriages in breach of its own doctrines.’Footnote 112 Lord Faulks did ‘not share the enthusiasm of some noble Lords for the Strasbourg jurisprudence’ and, while some of his colleagues predicted that it was ‘inconceivable’ that there would be a challenge, he was ‘not as confident as they are – few lawyers are’.Footnote 113 Lord Brennan agreed: ‘it would be naïve to assume that the problems that have been raised by other barristers will not encounter serious disputation in our courts and in Strasbourg’.Footnote 114
Lords Faulks and Brennan were to be vindicated with alacrity. Within just one month of the Act's passing, the homosexual couple chosen by the Government to promote the SSM legislation announced that they were taking a case to Strasbourg to force the Church of England (to which they belonged) to marry them in their local parish of Danbury, Essex.Footnote 115 It is difficult to forecast how the European Court of Human Rights would rule to such UK applicants. Some members were never persuaded that the quadruple locks (‘Fort Knox locks’, as one member mockedFootnote 116) would not be ‘picked’ by the Strasbourg court.Footnote 117
In Schalk and Kapf v Austria, the European Court of Human Rights held that SSM legalisation was a matter for each state.Footnote 118 It also noted the sociological fact that ‘a rapid evolution of social attitudes towards same sex couples had taken place in many member states’ over the last decade.Footnote 119 This might suggest a readiness to recognise a right for same-sex couples to be married by religious as well as civil bodies. But the right of religious group autonomy under Article 9 has also been consistently and forcefully affirmed.Footnote 120 In the recent Good Shepherd case, the Grand Chamber reaffirmed the right of a religious community to determine matters of internal governance,Footnote 121 including the duties of members of its clergy.Footnote 122
For now at least, the locks do appear to be reasonably secure from Strasbourg attack. Unpicking by future UK parliaments is a different matter. As Lord Naseby reminded: ‘Safeguards are not met by quadruple locks. Locks can be undone by any fiendishly good legislator anywhere in the world.’Footnote 123 Including, one might gratuitously add, those who inhabit Westminster.
Exemptions for registrars?
The Conservative MP David Burrowes moved an amendment to protect marriage registrars during the second reading in the House of Commons.Footnote 124 The Bill (in clause 2(4)(b)) expressly stated that those entitled to immunity from conducting SSMs ‘[did] not include a registrar’. Some MPs considered this to be a serious flaw.
The well-known case of the Islington Borough Council registrar Lillian Ladele, whose claim went all the way to the European Court of Human Rights,Footnote 125 was the prime example mentioned in the House. It will be recalled that Mrs Ladele, a Christian, had intimated that, owing to her sincere religious convictions, she did not feel able to conduct a civil partnership ceremony for any same-sex couple seeking one. She had become a registrar of birth, deaths and marriages in 2002 and two years later the UK Parliament passed the Civil Partnership Act 2004, which came into effect in December 2005. The council could have accommodated her conscientious position without interruption of service and without any offence to those seeking civil partnerships. There were more than sufficient registrars who did not share her views to cover these duties. Other UK councils had organised their roster of registrars to ensure that no objecting registrars would be forced to comply and that no client would face any embarrassing refusal. However, the Islington Council's decision not to do so was found by both the Employment Appeal Tribunal and the Court of Appeal to be lawful since it was acting in pursuit of a self-made equality policy entitled (with no apparently intended irony) ‘Dignity for All’.Footnote 126 The disciplinary proceedings instituted by the council against Ladele for gross misconduct were upheld and her claim of religious discrimination was dismissed.Footnote 127 The European Court of Human Rights upheld the Court of Appeal decision in January 2013 and so the Strasbourg judgment was fresh in the parliamentarians' minds during the SSM debate.
To return to the Burrowes amendment, it read:
New clause 2 – Conscientious objection –
(1) Subject to subsections (2) and (3) of this section, no registrar shall be under any duty, whether by contract or by any statutory or other legal requirement, to conduct, be present at, carry out, participate in, or consent to the taking place of, a relevant marriage ceremony to which he has a conscientious objection.
(2) Nothing in subsection (1) shall affect the duty of each registration authority to ensure that there is a sufficient number of relevant marriage registrars for its area to carry out in that area the functions of relevant marriage registrars.
(3) The conscientious objection must be based on a sincerely-held religious or other belief.
(4) In any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.Footnote 128
There was also a similar amendment (new clause 3) to implement transitional protection to preserve the right of conscientious objection for registrars already employed.Footnote 129 Several MPs noted that the Netherlands had such a transitional exemption provision.Footnote 130
The conscientious objection provision makes it clear that no client would be denied a civil marriage ceremony owing to a want of suitable registrars and hence a registrar would be unable to claim protection if no-one could cover for him or her in that particular locality. Objecting registrars would also have the onus of proving their refusal was grounded in sincere religious or other beliefs. Some members drew the analogy with surgeons who were allowed, under the conscientious objection provision in the abortion legislation, to abstain from participation in abortions.Footnote 131
Opponents of the new conscientious objection clause echoed the arguments from the Saskatchewan case, Marriage Commissioners, discussed earlier. The Labour MP Kate Green, for instance, contended: ‘We are talking about someone who is performing a state function. They cannot pick and choose when acting as an agent of the state to what extent they are prepared to fulfil the function that they are required to perform.’Footnote 132 The prospect that some registrars might be forced to choose between their beliefs and their livelihood was ‘regrettable’ but ‘one of the things that [went] with being a public servant is that one has to fulfil the requirements of the law of the land as it stands at the time’.Footnote 133 The analogy between objecting registrars and surgeons refusing to do abortions was misplaced, countered one MP. The registrar's sole duty was to conduct marriage, whereas a surgeon had many duties, among which abortion was a ‘tiny part’ of what they might be called to undertake.Footnote 134
Burrowes did not press the permanent exemption (new clause 2) to a vote but did put up the transitional exemption provision (new clause 3). The amendment was lost by 340 to 150 votes.Footnote 135
CONCLUSION
It is fitting that clergy and other religious ministers have been granted exemptions to permit them to refuse to solemnise SSMs in those countries that have legalised marriages by same-sex couples. This core facet of religious group autonomy has been guaranteed in the wake of considerable pressure from churches (and other religious communities) to have the right to solemnise marriages in accordance with the preservation of the religious community's beliefs and customs. Whether future parliaments or courts will overturn this exemption is difficult to assess. Three, and even two, decades ago one would have been hard pressed to find many who would have confidently predicted that SSM itself would be legalised.
In New Zealand, the protection for religious ministers is weakened by the requirement that the religious body to which the minister belongs must have an express and clear rule on the matter. This is a problem for conservative pastors and priests in those denominations that are still struggling to come to a clear resolution either in favour of or against the solemnisation of SSM.
The attempt to extend protection to civil marriage celebrants has been rejected in each country that has sought to do so. It was expressly considered and rejected in the Westminster parliament. Meanwhile, the attempt by Saskatchewan to introduce an exemption for civil celebrants was ruled to be unconstitutional by that province's court of appeal. The case for protection for those who were already celebrants when SSM was legalised appears to be stronger than for those appointed after the law came in. Even in that situation, however, an exemption has been rejected. The operative reasoning has been that those who work for the state must abide by official public norms. There is no room for devout public servants to choose which citizens they will serve when it comes to solemnising marriage (or civil unions for that matter). There is a strange amnesia at work here insofar as the obligation of state to accommodate the religious conscience of its employees is forgotten. It is a safe prediction that devout religious persons (who hold to ‘traditional’ sexual ethics) will withdraw from this area of the civil service.
But it might not come to this. The Saskatchewan Court of Appeal approved in principle a ‘single entry point’ system. Here, by way of a simple bureaucratic process, a sensible reconciliation of the competing rights can be attained: same-sex couples may obtain a state-sanctioned ceremony without enduring rejection or embarrassment, while devout marriage commissioners can retain their jobs and avert a violation of their conscience. If the hard-won right of religious liberty is to be preserved in increasingly secular Western societies, creative solutions such as these will need to be found.
