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.

One thought on “Definition of marriage and religious freedom

  1. Deane August 30, 2012 / 12:32 pm

    Ha ha – poetic justice, eh? or maybe divine retribution


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