Definition of marriage and religious freedom

Marriage à la mode, 1932. Part of Godber, Albert Percy, 1875-1949 :Collection of albums, prints and negatives, Reference Number PA-Group-00048, Alexander Turnbull Library, Wellington

The New Zealand Human Rights Commission has published a short and nuanced assessment of what Louisa Wall’s Definition of Marriage (Amendment) Bill means for New Zealand’s religious communities.

On the one hand, churches and other religious organisations can refuse to perform marriages that aren’t consistent with their religious beliefs (e.g. Catholics already won’t re-marry divorcees who haven’t been able to obtain an annulment from a Catholic church court). On the other hand, religious groups can’t discriminate in services that they make available to the public as a whole. The example the NZHRC uses is rental of a church hall. If you generally rent it out for weddings, you can’t refuse to rent it out just for gay weddings – any more than you can refuse to rent it to a specific ethnic group.

But religious opposition to the bill still pays a lot of attention to the following claims: (1) that churches rather than the state “own” the definition of marriage (so that the state has no business in changing that definition), and (2) that if the state claims that role for itself, it will then force religious groups to comply with it against their consciences.

But the history of New Zealand’s marriage legislation suggests that this horse has already bolted, and that, despite a lot of angst and religious ill-feeling, good sense prevailed and no one was forced to act against his or her conscience.

The case I have in mind is the Massey government’s legislative response to the Pope Pius X’s decree Ne temere (1908). This decree created outrage — some of it genuine, but much of it whipped up for sectarian ends — when it defined as invalid any marriage contracted between a Catholic and a non-Catholic before any authority other than the one appointed by the Catholic church. In other words, if you were a Catholic (even a lapsed Catholic) and you married a Jew in a synagogue or a Presbyterian in a Presbyterian service, the Catholic church did not believe you were married at all. In a society that still stigmatised “living in sin” and illegitimacy, this was a big deal.

(It’s worth noting in passing that the Catholic church actively discouraged all mixed marriages in this period. When celebrated they were deliberately treated as second rate – e.g. celebrated in the sacristy rather than in the church)

Although Ne temere recognised the validity of non-Catholic marriages conducted in non-Catholic settings (e.g. two Baptists in a registry office), the decree was treated as an affront by most of the New Zealand Protestant churches (understandably enough, one might think) and in sections of the New Zealand media. In fact the religious climate throughout the Empire was already thoroughly poisoned by political troubles in Ireland, and with little sense of inconsistency, the Presbyterian, Methodist and Baptist churches formed committees to urge the government to defend “Protestant liberties” and to introduce legislation criminalising any imputation that a marriage recognised by the state was not a valid one.

In other words, major New Zealand churches asked the state to define marriage and to prosecute anyone who called the state’s definition of marriage into question. The results of that political lobbying have been enshrined in New Zealand marriage legislation since 1920Section 56 of the 1955 Marriage Act (the one Louisa Wall’s bill seeks to amend) includes the following:

(1)Every person commits an offence against this Act, and shall be liable on summary conviction to a fine not exceeding $200, who—

  • (a) alleges, expressly or by implication, that any persons lawfully married are not truly and sufficiently married; or

  • (b)alleges, expressly or by implication, that the issue of any lawful marriage is illegitimate or born out of true wedlock.

(2)For the purposes of this section the term alleges means making any verbal statement, or publishing or issuing any printed or written statement, or in any manner authorising the making of any verbal statement, or in any manner authorising or being party to the publication or issue of any printed or written statement. […]

I am not sure how these threats were received by Catholics (and by some of their supporters among High Anglicans) when the legislation passed in 1920. I don’t know, either, whether anyone has ever been prosecuted under this section, and, if they have, what shape their crime took. I’m not aware of any secondary literature on the subject.

But it looks as though, despite differences over the definition of marriage, church and state (and church and church) have managed to muddle along. Despite a great deal of what Fred Clark describes as “Münchausens Martyrdom” (i.e. wildly exaggerated claims or prognostications of religious persecution by the state) church and state seem likely to rub along if the “Gay Marriage” bill becomes law. Just as New Zealand Catholics haven’t suffered notably for their reservations about certain mixed marriages, it seems likely that all religious groups in New Zealand will be left alone to police their own marriage regulations.

And if the churches now object to the state reaching autonomous decisions about the definition of marriage without undue religious interference, they should remember that they were the ones who asked the state to do so.


Before you say a word…

According to the biblical wisdom traditions, one of the characteristics of wisdom is knowing when to speak and when to keep your mouth firmly closed (see, for example, Proverbs 15:2, 7). In a week where we have had ample illustration of the human capacity to eschew this advice and make ignorant and ill-considered comments, my thoughts have turned to certain biblical characters whose own ‘off the cuff’ remarks had disastrous results, either for themselves or for those unfortunate enough to be caught up in the effects of their verbal folly. For your reading pleasure, I have therefore listed below, in no particular order, my own top three biblical cases of some serious ‘foot in mouth’ disease:

  1. Jephthah (Judges 11)

    Jephthah’s sacrifice, Maciejowski Bible

Our first biblical character is perhaps the perfect exemplar of why the saying, ‘think before you speak’ really is sound advice. During the heady adrenalin rush of battling against Israel’s enemy the Amonites, Jephthah opened his mouth to make a calamitously rash vow; that he would offer up as a burnt sacrifice whatever or whoever came out of his house to greet him on his return home. Alas for him, the ‘whoever’ happened to be his only daughter, who ran out to meet him, dancing and timbrel playing in celebration of his homecoming. Jephthah, naturally, was distraught, although any sympathy we may have mustered for him at this point is tempered by the fact that he seems to impute some degree of blame on his daughter for the debacle before stubbornly refusing to go back on his injudicious word. Perhaps he should have taken a leaf out of the book of Micah’s mother, who, later in Judges 17, appears to laugh off a curse she had uttered earlier against the thief who stole her silver, which would have seen the demise of her light-fingered son. Perhaps, too, Jepthah’s ill-fated daughter should have been a little less understanding of her father’s inopportune vow and made her escape during her two months spent in the mountains bewailing her virginity, rather than returning home, like the archetypal ‘obedient daughter’, to become a sacrifice to her father’s stupidity.

  1. 2.      Adam (Genesis 3)

    Zampieri, Adam et Eve

In the story of the ‘Fall’, Adam’s initial wrongdoing, along with that of his wife, revolves around what he puts in his mouth, rather than any words that come out of it. However, the consequences of his initial verbal response to God’s charge of disobedience (3:12) have unarguably reverberated throughout millennia, spawning a plethora of misogynistic and ill-informed attitudes concerning the character of Eve and, by extension, shaping attitudes and ideologies about women in general. When God asks Adam if he had disobeyed the divine command by eating the forbidden fruit, Adam shrugs off responsibility for his wrongdoing and, with a quick rejoinder of ‘She made me do it!’ shifts the blame fully and firmly onto his wife. And thus follows centuries of analogous remarks made by those who take the character of Adam’s words at face value; about women being the ‘Devil’s gateway’ (Tertullian), the source of sin and death (Ben Sira), ‘imitators’ of the temptress Eve, and thereby ‘imperfect and lustful beings who posed grave danger to men’ (15th Century document on witchcraft, Malleus Maleficarum, which argued that most witches were women because women were, like Eve, particularly susceptible to temptation). What is especially irksome and inequitable about these ghastly responses is the fact that Eve’s own similar attempt to shift the blame onto the serpent (3:13) didn’t work half so well as her husband’s. The reputation of talking snakes has, over the centuries, remained unsullied.

  1. 3.      God and The Adversary (Job 1-2)
‘Does Job fear God for naught?’ (Job 1:9)

As was amply illustrated in number 1 above, sometimes the words of one biblical character can have a shattering effect upon other characters who are unfortunate enough to come into their sphere of influence. This is demonstrated clearly in the prologue to the book of Job, where God and the Adversary, a member of the divine council, are portrayed as engaging in some verbal parrying, thereby unleashing a series of events which rip devastatingly through the lives of one man and his family. In Job 1, God is portrayed as boasting rather smugly to the Adversary about the righteousness of his servant Job. This is simply too good an opportunity to miss for a ‘son of the gods’ whose main role is to wander the earth, looking for potential chinks and weak spots in humanity’s faith. After casting doubt on Job’s fidelity to God and accusing the deity of mollycoddling this particular ‘servant’, the Adversary lays down a challenge that God appears to find irresistible. Before we know it, the storyteller informs us that Job’s household and wealth are taken violently from him and his offspring lie dead.

William Blake, ‘You scare me with dreams’ (Job 7:14)

Even worse, in chapter 2, the same dubious cycle begins again, with a divine boast and adversarial riposte leading to Job’s infliction with a serious and debilitating skin disease. And all, as God himself admits, ‘without cause’ (2:3). It’s an unsettling story, which again drives home the dangerous power of the spoken word. While Job’s own words, in which he rails against the injustices of the divine realm, do ultimately redeem him (42:7), it is perhaps cold comfort given everything that he has lost and endured, all because of a heavenly wager, which, to my mind, went way too far.