Balancing rights: Freedom of Religion and Freedom from Discrimination

Marriage (Definition of Marriage) Amendment Bill

Everyone is entitled to have and express their own personal beliefs and convictions including religious beliefs. The laws of New Zealand balance this right, the right to associate with others who share your beliefs and the right to not to be discriminated against on the basis of your identity.[1] Religious belief and sexual orientation are both prohibited grounds of discrimination in the Human Rights Act 1993 (HRA) and the New Zealand Bill of Rights Act1990 (NZBORA).[2]

If the Marriage (Definition of Marriage) Amendment Bill became law no religious minister would be required to marry a same-sex couple, anywhere, including in a church. Section 29 of the Marriage Act states “a marriage licence shall authorise but not oblige any marriage celebrant to solemnise the marriage to which it relates”.[3]

A religious marriage is a core part of practising a religion. Religious officials and leaders are free to refuse to perform marriages that are not in accordance with their religious beliefs.[4] In New Zealand, the discretion currently given to marriage celebrants in section 29 of the Marriage Act 1955 allows any marriage celebrant, including religious ministers who are licensed celebrants, the right to refuse to marry someone without breaching the unlawful discrimination provisions of the HRA. In part this reflects the fact that religious ceremonies and services are not an area of public life covered by the HRA. Similarly ceremonial or consecrated spaces, or any other religious premises that are not made available for the public to hire, are not covered by the HRA.

However, when religious organisations provide goods or services or accommodation to the public they are held to the same non-discrimination standards as others. One example would be when a church rents out its hall to members of the public. It would be unlawful to refuse to rent the hall to someone because of their sexual orientation, race or other prohibited ground of discrimination in the HRA, except where there are explicit exceptions set out in the HRA.

[1] This includes the right to not hold religious beliefs and to not be discriminated against because of this ethical belief – section21 (1)(d) of the Human Rights Act 1993.
[2] Section 5 of the NZBORA allows the rights and freedoms contained in the NZBORA to be limited only as far as can be demonstrably justified in a free and democratic society. The rights to be considered include freedom from discrimination (section 19) and freedom to manifest one’s religion and belief (section 15), that is, “every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private”.
[3] This point is reiterated on page 7 of A Guide to the Role of Marriage Celebrants in New Zealand published by the Department of Internal Affairs. Accessible online.
[4] International Commission of Jurists (2011) Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook, particularly chapter 10. Geneva: International Commission of Jurists. Accessible online.

Commission endorses marriage and adoption equality.

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