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Marriage Equality

On Wednesday Louisa Wall’s bill for Marriage Equality passed its third reading 77 votes to 44. New Zealand is now the thirteenth country to allow this.

One priest friend posted:

I so enjoyed Maurice Williamson’s speech in Parliament last night and am glad the same sex marriage bill has passed its third reading. Perhaps the liturgical commission can bring out its trial liturgy to bless same sex relationships at last…

That enthusiastic sentiment was welcomed and commented on by a number of people. But it is worth a slightly deeper look.

1) It is not a same sex marriage bill. That can give the impression that “same sex marriage” is something different to “opposite sex marriage”. The whole point of the bill is to provide the same rites and the same rights for lesbian, gay, bisexual, and transgender people as for heterosexual people. But wait there is more:

1a) There is a footnote to 1). I saw quite a bit of scaremongering in these months – that those who maintain that marriage is only for one man and one woman would end up being required to officiate at the marriage of a same sex couple, and that those who proclaimed this belief would be prosecuted under Section 56 of the Marriage Act 1955. This has that it is an “Offence to deny or impugn validity of lawful marriage“. At the first reading it was not thought necessary to alter this,

Some people have suggested that the Church cannot share its view about marriage because of section 56 of the Marriage Act. Section 56 says that a person cannot state that another person’s marriage is not legal. That does not concern the general view of marriage but is directed to an individual, and the reality is that once sanctioned by law, the marriage is legal, and no Church person should be stating otherwise.

In the end, parliament bent over backwards to add reassurance upon reassurance for these people, and so also repealed Section 56.

So, if you want to continue to teach that marriage is only between one man and one woman, you can do so without being directly affected by this bill.

2) “Perhaps the liturgical commission can bring out its trial liturgy to bless same sex relationships at last”. Well, actually the Liturgical Commission brought out the rite for The Blessing of a Relationship as long ago as 1992. Our General Synod passed the legislation that allowed that rite in 2002.

2a) Civil Unions have been legal in NZ since 2005. Talk of a rite of blessing such a relationship may have been appropriate for that. But Wednesday’s passing of this bill was not about some rite of blessing for committed-same-sex couples that differs from what is offered to a heterosexual couple. The bill is about the same rights and same rites for all. It is about extending the marriage rite to the LGBT community. That only takes about half an hour with a word processor and the currently authorised rites of marriage.

3) This easy-to-produce inclusive marriage rite in the Anglican Church in Aotearoa, New Zealand and Polynesia (IMO) needs to go through General Synod Te Hinota Whanui (GSTHW), then passed by a majority of diocesan synods and hui amorangi, back to GSTHW for a second vote there, and then wait a year for any legal objections before it can be used.

3a) I was once rung by a bishop who was overjoyed to have spotted what this bishop thought was an error on this site. I had not yet recognised a liturgical change that had gone through GSTHW twice. I reminded the good bishop that the year for legal objection was not yet over. The bishop laughed and said, “Oh, no one takes any notice of that! Some people even start to put the change into effect after it has been to GSTHW the first time.”

You read it here first: bishops and many others will not be so jolly or easygoing when it comes to how we include LGBTs in the church. That year allowing for legal objection will be observed to the final day.

Lesbian, gay, bisexual, and transgender people have a special status in our church. People can deny many a clearly-defined belief, or break any number of church teachings or regulations, but bless a gay couple, or ordain a person in a committed same-sex relationship, and all hell can break loose.

4) Oh, yes. You wanted to watch Maurice Williamson’s speech my priest friend mentioned.

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22 thoughts on “Marriage Equality”

  1. Andrew Allan-Johns

    Hi Bosco.
    My understanding of the timeline for change in the Anglican church in Aotearoa, New Zealand and Polynesia is as follows.

    A Bill to amend the New Zealand Prayerbook Marriage service and the the Canon on Marriage Title G, Canon III (Of Marriage) will probably be introduced to the General Synod in 2014. If it passes it will have to be approved by a majority of the diocesan synods. If this succeeds it must be passed again by a freshly elected General Synod in 2016 and then survive 12 months of appeal. Any appeal is likely to be introduced on the last day possible and thus require the rest of 2017 to be heard. Thus any change is unlikely before 2018. This is the best that can be hoped for by reformers.

    In my opinion such reform will fail at the first hurdle because it is fundamentally unconstitutional. Whatever one may think of the theological and pastoral merits of such reform, our constitution is constructed to protect the church from being able to change its doctrine.
    The doctrine of marriage as expressed in our Prayerbooks and the above cited canon is part of the “fundamental provisions” which constitutionally can not be changed. My reading of the constitution suggests that there is about a four level firewall to prevent this. It begins with a requirement that the Statutes and Canons Committee of the General Synod may not introduce legislation that will conflict with the “Constitution/te Pohere, the Canons or previous legislation of the Synod/te Hinota”. The final protection is the “Church of England Empowering Act” of 1928 which “prevents the General Synod from departing from the Doctrine and Sacraments of Christ as defined in clause one of the Constitution.” Which includes the Books of Common Prayer.

    The issue rests on whether or not any reform amounts to a change in doctrine. It would be very hard to argue that it wasn’t. As I see it the prospects for the reformers look bleak if General Synod is faithful to its constitution. If it tries to work around it the matter will end up in the High Court sometime in 2019 and, given the weight of constitutional protection given to our doctrine, most likely to fail.

    1. Thanks, Andrew. Much of what you write expands and agrees with my point 3) in the post. I am not aware if our Liturgical Commission is working on a revision of the marriage rite to be presented at GSTHW14 as you suggest, as it is their policy not to make their minutes available. I am interested why you think that this change is an impossible change of doctrine when allowing communion to the unconfirmed, remarrying the divorced, ordaining women (as just three examples) managed to get through this process without the difficulties you foresee. Christ is Risen!

      1. Andrew Allan-Johns

        Bosco.
        To answer your points:
        I expect a Bill to come from an individual wanting to expedite the process. If it came post a Doctrine Commission report you could possibly add two years onto the timeline.
        Why did those changes get through? Perhaps because no one tested the full extent of the constitutional protections, or perhaps it is because those changes were not doctrinal changes of the same magnitude being considered here. It it one thing to add to a doctrine, it is much harder to argue that the doctrine of Christ and his Sacraments does not define marriage as being between a man and a woman.
        Easter blessings!

  2. To hear people singing spontaneously Pokarekare Ana love song…in beautiful sincere harmony no less…in a government setting…gladdens my deadening heart:
    the spirit yet moves!

  3. I am also overjoyed at the Government action. However, like many gay men, I am almost sick of waiting for the church to move. I have set 2014 as the deadline. If what Andrew Allan-Jones says is true, it is very likely I will join many of my gay brothers and sisters and leave the Anglican church which I have loved for over 60 years. I moved from Sydney to Dunedin largely to seek a more accepting environment. The Anglican Church in Canada seems to have managed to become inclusive without all these problems.

  4. Ah, the old ‘fundamental provisions’ debate. Actually, the last time I heard this threatened was regarding suggestions around lay presidence emanating from, which diocese was that again … I agree with Andrew’s likely timetable although not the final outcome. I don’t believe this is any bigger than (and actually not as big in some cases) the situations you cite Bosco. Interestingly I would also note for those watching carefully that marriage is not defined as a sacrament by our church (sacramental action is the term used in our current prayer book) and that has certainly been the arch-episcopal position of late, and undoubtedly that of Cranmer some time ago!
    What will be really interesting is what happens when (not if) priests ignore the status quo and preside at same-sex weddings. If, as is likely, a complaint is laid and, less likley, a bishop decides to suspend or remove a license on canonical grounds, what will happen when other complaints get laid (because they will) about clergy using unauthorised liturgies – equally uncanonical? There is a hornets nest waiting to be stirred methinks!

    1. Thanks, Brian. Just to add one other stick hovering over that hornets nest ready to poke it: people taking out a “Title D” against any bishop who removed a licence as you describe, because of some episcopal breach. The hornets nest and sticks are all possibly ready and poised; I continue to wonder why, to change the metaphor (just because I can – actually just because I’m not clever enough to continue it, but don’t tell anyone), why it is this issue that leads so rapidly to the sabre-rattling rather than other situations (some of which you see as bigger)? Christ is risen!

  5. Hi Bosco – what/who is the ‘Blessing of a Relationship’ rite intended for, out of interest, and what’s the background to it being introduced and authorised?

    1. Simon, the format of this site is that underlining means it is a link. When you click on that link it will take you to the rite with its explanation. Easter Season Blessings.

  6. I do not understand the provision for protection for clergy not wishing to perform a blessing of a same sex marriage to be a simple matter for our church.

    If our church (as is likely, in the course of time) to take a position that its ministers may or may not provide such blessing, then we would be a religious organisation which did not easily fit the bill’s definition regarding ‘conscience’ as the definition relates to the beliefs of the religious organization to which the minister belongs, and that definition seems to envisage the organisation either being wholly in favour or wholly against.

    1. I am no lawyer, Peter, and your point is best responded to by a lawyer. If a lawyer were to clarify your point here – that would be great. Ruth Dyson said at the Third Reading:

      The bill ensures that our religious freedoms for celebrants are maintained. We in the Government Administration Committee applied a belts and braces approach, to ensure that the law is beyond doubt in backing the rights of marriage celebrants to decline to marry a couple should such a marriage not be in accordance with their beliefs. The Marriage Act has since 1955 said that celebrants can do that, presumably to protect celebrants from being forced to marry heterosexual couples of different religions or—heaven forbid—marry somebody who was divorced.

      I understand that no marriage celebrant, secular or religious, is (has ever been?) required to officiate at any particular wedding. For some reason(s) they decided to strengthen that clause. I think the repealing of Section 56 reinforces that this Bill is bending over backwards to ensure that people who disagree with it have are perfectly legal in doing so.

      The bigger issue, clear in the comments above, for the Anglican Church, is that while the secular sphere may have managed that – it appears that the church may not.

      Christ is risen.

  7. Hi Bosco,
    One should always distinguish between the intentions of the law-makers and the possibilities of interpretation of the law at the hands of judges to whom cases are brought by activists intent on making a point.

    In this particular case there is a concern that a case brought which invoked laws relating to anti-discrimination could expose the possibility that the belt is minus its buckle and the braces are made of weak elastic.

    However you can be sure that I will stand by you in court 🙂

  8. Wynston Cooper

    Hello Bosco

    I believe that Peter Carrell is correct. Section 29 provides that marriage celebrants acting on behalf of an organisation (such as a church) would not be compelled to solemnise marriages against “the religious beliefs of the religious body”. This means that if the Anglican Church in New Zealand decides that that same sex marriages may be performed then ALL Anglican priests WILL be required to do so reagrdless of their personal beliefs! Parliament had a chance to get the wording right but in its “wisdom” chose to vote down Su’a William Sio’s amendment that would have upheld the right of individuals to refuse to preside over such weddings. Further, as currently worded no Marriage Celebrant outside the church will be able to refuse to conduct a same sex marriage because of their personal beliefs. So much for leaving law-making to politicians!

    1. Thanks for your visit and comment Wynston. I am not a lawyer. Peter Carrell is not a lawyer. Are you? It would be helpful to have someone with legal expertise comment.

      Section 29 from 1955 had

      29 Licence authorizes but not obliges marriage celebrant to solemnize marriage
      A marriage licence shall authorize but not oblige any marriage celebrant to solemnize the marriage to which it relates.

      Since 1955 are you aware of a single decision to decline being challenged through the courts?

      Family First presented the opinion of a barrister that there was a chance courts would find that declining to marry a couple on the grounds of sexual orientation would be a breach of the Human Rights Act.

      In August 2012 The Human Rights Commission (the body that would investigate any complaint of discrimination) stated:

      “Religious ministers have the right to refuse to marry anyone. That right will not change if the Bill becomes law,” said Chief Commissioner David Rutherford. “It will be up to any individual marriage celebrant, including those who are religious ministers, to decide whether or not they wish to marry a same-sex couple.”
      This right already exists in section 29 of the Marriage Act which states that a marriage licence “shall authorise but not oblige” any marriage celebrant to solemnise that marriage.
      This position also reflects international human rights law.

      To be absolutely clear, Section 29 was amended by adding

      Section 29 amended (Licence authorizes but not obliges marriage celebrant to solemnize marriage)
      In section 29, insert as subsection (2):
      “(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 the religious body or the religious beliefs or philosophical or humanitarian convictions of the approved organisation.”

      So, the old 29, now subsection (1) is in no way limited.

      In my tired moments, I have seen the “no celebrant …is obliged to solemnize a marriage if…” as indicating that, under certain conditions “celebrants are obliged to solemnize a marriage if…”, which is Peter’s and your reading. After a bit of a rest and some coffee – I think that reading is incorrect. But I am not a lawyer…

      ps. The Anglican Church in Aotearoa, New Zealand and Polynesia has as Title G Canon III 2.11:

      Any minister shall have full discretion to decline to conduct any marriage service.

      Easter Season Greetings.

      1. May I note, in response to Andrew Allen-Johns, and as a past long-time member of the Statutes and Canons Committee of the General Synod/Te Hinota Whanui, that the Statutes and Canons Committee does not introduce Bills to the GS/THW. Its purpose, in this regard [Title C, Canon III, Clause 6(a)] is to
        “Examine and report to the President and the mover of each bill upon its drafting prior to consideration of such bill by Synod, …”.

        Such reporting would include comments about any clashes with the Constitution/Te Pouhere and in particular the Fundamental Clauses.

        It is hard, though, to see why the references to the man and the woman in the BCP Solemnisation of Matrimony should be regarded as binding, particularly given the number of variations on this understanding of marriage endorsed in the Old Testament [also used as a reference in Clause 1 of the Constitution], when the references throughout the BCP to the ordained as male were not taken to prevent the ordination of women, nor Timothy’s requirements for a bishop to prevent unmarried bishops.

        Why does sex engender such aggro, compared to other issues?

      2. No, I am not a lawyer but I spent many years of my working life interpreting and implementing legislation. (In one role I even regularly had lawyers contact me for an interpretation of one particular piece of legislation).Given that the later legislation tends to override previous legislation I believe that my interpretation of section 29 is correct. However, I would strongly encourage the church to obtain legal advice before any proposal is taken to General Synod in 2014.

  9. Here in the USofA we have the separation of Church & State. We can’t say God Bless you in public if anyone from the
    ACLU is within earshot. It is quite a sad & sorry state of affairs. Being Politically Correct /PC these days can wear a woman down.

    1. Hmmm… Linda, when we watch the news we see your President say “God bless” a lot. And people on your news say they will pray for people, etc. Blessings.

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