Cross-Examination: If You Like It, You Should Be Able to Put a Ring On It?

Content Contributor, Hannah Yang

In a landmark case, the United States Supreme Court held last year in Obergefell v Hodges that same-sex couples in the United States were also to be guaranteed the right to marry.[1] In response to this ruling, the Mississippi legislature earlier this year passed House Bill No. 1523 (HB 1523), or the “Protecting Freedom of Conscience from Government Discrimination Act”, a law that sanctions the refusal of marriage licenses and marriage-related services to LGBT persons on religious grounds.[2] The Bill has since been blocked by the District Court of Mississippi from coming into effect.

This article will examine contents of HB 1523, explain on what grounds it was blocked, and discuss the relevant law in New Zealand around the issue of LGBT rights and religious freedom.

House Bill 1523

HB 1523 protects three “sincerely held religious beliefs or moral convictions”, namely the following—

• That marriage is between a man and a woman;
• That sexual relations should be limited to such a marriage;
• That male/female and man/woman means the biological sex of a person determined at birth by anatomy and genetics.[3]

Under this Bill, several groups of people holding these beliefs are protected from state penalty if they refuse certain goods and services to others.

Religious organisations are protected if, because of the protected beliefs, they—

• Refuse to marry or provide marriage services to anyone;[4]
• Refuse to hire, decide to discipline, or decide to fire anyone;[5]
• Refuse to sell, rent, or allow to occupy any of their property to anyone;[6]
• Refuse adoption/foster care services to anyone.[7]

Private individuals are protected if, because of the protected beliefs, they—

• Refuse to provide marriage-related services to anyone, including photography, poetry, videography, DJ services, wedding planning, printing, and publishing;[8]
• Refuse to provide marriage-related goods and facilities to anyone, including floral arrangements, dresses, cakes, wedding venues, car rentals, and jewellery;[9]
• Make sex-specific policies regarding the dress of employees or students, and access to bathrooms/changing rooms/showers.[10]

Individuals working for the state government who can authorise marriages are protected if, because of the protected beliefs, they refuse to authorise any marriage.[11]

In practical terms, this means anybody who identifies as lesbian, gay, bisexual, or transgender, as well as anybody who enters into sexual relations outside of marriage, may be denied the right to marry solely because of these characteristics. Businesses and organisations may also deny them marriage- and adoption-related services, and they may be fired, disciplined, or rejected as a potential employee solely on these grounds. Transgender people may be required to use sex-specific facilities corresponding to the sex they do not identify with or from which they have transitioned away.

The Bill guarantees that people who do the above will not be punishable in the way of fines, changes to their tax status, or removal of any grants, contracts, benefits, licenses, or positions they may hold.[12] Those in the employ of the government who refuse services to LGBT persons will not be subject to any adverse action.[13]

Is HB 1523 constitutional?

Unlike New Zealand, the Constitution of the United States is codified, and prevails over state law. This means the Constitution may be invoked to strike down legislation passed in individual states which are considered to be inconsistent with the Constitution. HB 1523 was halted by this means, with Barber et al v Byrant et al holding that HB 1523 violated the First and Fourteenth Amendments of the Constitution.[14]

The First Amendment

The First Amendment of the United States Constitution contains an Establishment Clause, which provides that no law shall be made which favours any religion over another, or religion over non-religion.[15]

HB 1523 was found to violate this clause because it creates an official preference for certain religious beliefs over others.[16] While the law does occasionally provide exemptions for people holding religious beliefs, these exemptions must not “impose substantial burdens on non-beneficiaries while allowing others to act according to their religious beliefs”.[17] HB 1523 failed to meet this standard, as it gives those with protected beliefs an absolute right to refuse services to LGBT citizens regardless of the impact on employers, co-workers, and those denied the services.[18]

The Fourteenth Amendment

The Fourteenth Amendment contains an Equal Protection Clause, which provides that state law must treat a person in the same way as others in similar circumstances.[19]

HB 1523 was found to violate this clause because it makes it more difficult for certain groups of people to seek aid from the government.[20] While it is a legitimate end for laws to promote the protection of religious beliefs and expression, HB 1523 was not rationally related to this end because it only gives protection to a single set of beliefs.[21] The essence of HB 1523 was found to deprive equal protection of the law to certain citizens, violating the Fourteenth Amendment.[22]

The Law in New Zealand

Marriage

Registrars in New Zealand (unlike government employees holding protected beliefs under HB 1523 if the Bill were effective) may not refuse to issue marriage licenses solely on the grounds of sexual orientation or gender identity.

The right for same-sex couples to marry was granted by the Marriage (Definition of Marriage) Amendment Act 2013, which changed the definition of marriage to “the union of 2 people, regardless of their sex, sexual orientation, or gender identity.”[23] This overruled the case of Quilter v Attorney-General, which held that marriage for the purposes of the Marriage Act could not be between persons of the same sex, and which, up until 2013, was the leading authority on the interpretation of the Marriage Act.[24]

LGBT people therefore now have a right to be issued a marriage license or have their marriage solemnised by the registrar under s 28 of the Act, provided they are not underage and do not fall into the categories prohibited by Schedule 2.[25][26]

This obligation does not extend to marriage celebrants, who are private individuals. Having a marriage license authorises, but does not oblige any celebrant to solemnise the marriage.[27] This means celebrants are not forced to solemnise marriages that they deem inconsistent with their religious beliefs.

Business and Employment

The right against discrimination in business and employment in New Zealand is provided in the Human Rights Act 1993, where sexual orientation is a prohibited ground of discrimination.[28] It is illegal to refuse employment, to fire, or to offer less favourable working conditions to someone based on their sexual orientation.[29] It is also illegal for anyone in the business of supplying any goods/facilities/services to refuse to supply them due to the customer’s sexual orientation.[30]

An exception is provided for religion, and employers must accommodate practice that is required by the religious beliefs of employees, however this is limited to the extent that accommodating the practice does not unreasonably disrupt the employer’s activities.[31] This means that an employee’s refusal to serve a customer due to religious beliefs need not be accommodated, as refusal to provide the service the person is employed to provide may be considered an unreasonable disruption to the business activity.

It is noted that this is similar to the test required in Barber v Byrant, where it was held that allowing religious exceptions must not result in substantial burdens for others not benefitted by the exemption. The balance attempted to be struck in both instances seems to focus on allowing those with religious convictions to practice in accordance with them, while minimising the interference of those practices to others without the same religious beliefs. This may be the reason why marriage celebrants may refuse to solemnise a marriage that contravenes their beliefs; the availability of registrars whose duty it is to issue licenses reduces the impact of such refusals, however it should be noted that this freedom applies to all celebrants, not solely those with religious beliefs.

Transgender protections

It is up for debate as to whether the Act affords protection to transgender people. While sex is a prohibited ground of discrimination,[32] it has been recognised that sex and gender are separable issues.[33] The former refers to biology and anatomy; the latter pertains to social and psychological perceptions and conceptions of identity.

New Zealand case law has allowed people who have undergone surgery to be recognised as their adopted sex for the purposes of marriage.[34] This, however, has been largely rendered inconsequential by the amended definition of marriage, and is limited to those who have undergone surgery. It is unclear whether “sex” as a prohibited ground of discrimination under the Act extends to gender identity, and how much protection is afforded to those who identify with a different gender and have not had transitional surgery. There does not appear to be any legal precedent on this particular issue, however if Attorney-General v Otahuhu Family Court may tentatively be used as an indication, it seems the courts may adopt a progressive approach.

Constitutional safeguards

As previously mentioned, New Zealand does not have a written constitution of supreme law. Parliament is sovereign, and newer Acts of Parliament generally take precedent where there is any inconsistency. As a result, should anything similar to HB 1523 be passed in New Zealand, courts will not have the power to strike it down. Its effect can only be negated if Parliament repeals the Act.

Realistically, however, it is unlikely that such a Bill would be passed in New Zealand. Where any Bill is introduced to Parliament for debate, the Attorney-General must report on any inconsistency in the Bill with the New Zealand Bill of Rights Act 1990.[35] More practically, the overall position of Parliament does not appear to be particularly hostile on this issue. The Marriage (Definition of Marriage) Amendment Act 2013 passed its third reading with 77 votes in favour, and 44 votes against.[36] In 2005, a Bill that sought to amend anti-discrimination protections in the Bill of Rights Act and prohibit the recognition of same-sex marriages from foreign jurisdictions in New Zealand was defeated with 47 votes in favour and 73 votes against.[37]

Ultimately, the safeguards against legal encroachments on LGBT rights in New Zealand will be social and political, not constitutional. It is fortunate that they have not yet been required to be tested.

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[1] Obergefell v Hodges 576 US (2015).[2] Miss. Laws 2016, H.B. 1523.[3] § 2.[4] § 3(1)(a).[5] § 3(1)(b).[6] § 3(1)(c).[7] § 3(2).[8] § 3(5)(a).[9] § 3(5)(b).[10] § 3(6).[11] § 3(8).[12] § 4.[13] § 4.[14] Barber et al v Byrant et al 3:16-CV-417-CWR-LRA document 39.[15] US Const. am. 1.[16] Barber et al v Byrant et al, above n 11, at 47.[17] At 55.[18] At 56.[19] US Const. am. 14.[20] Barber et al v Byrant et al, above n 11, at 41.[21] At 40-41.[22] At 41.[23] Marriage Act 1955, s 2(1).[24] Quilter v Attorney-General [1998] 1 NZLR 523 (CA).[25] Section 28.[26] Schedule 2 prohibits a person from marrying those related to the person by whole or half blood, and those related to the spouse of that person.[27] Marriage Act 1955, s 29(1).[28] Human Rights Act 1993, s 21(1).[29] Section 22(1).[30] Section 44(1)(a).[31] Section 28(3).[32] Section 21(1)(a).[33] Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603 (HC) at 606.[34] Attorney General v Otahuhu Family Court, above n 34.[35] New Zealand Bill of Rights Act 1990, s 7.[36] (17 April 2013) 689 NZPD 9506.[37] (7 December 2005) 628 NZPD 677.