In response to the original posting by Jean Dudley, US scholars
may be interested in some recent developments elsewhere.
Here are some edited snippets from a forthcoming book (by myself
and Ian Leigh (Durham University, UK)):
CANADA
Recently, the Supreme Court of Canada in Reference re Same-Sex Marriage, 2004 SCC 79, [57]-[59], addressed the question of solemnization of marriage in the context of proposed legislation to extend the legal right to marry to same-sex couples. It stated:
Recently, the Supreme Court of Canada in Reference re Same-Sex Marriage, 2004 SCC 79, [57]-[59], addressed the question of solemnization of marriage in the context of proposed legislation to extend the legal right to marry to same-sex couples. It stated:
"The performance of religious rites is a
fundamental aspect of religious practice. It therefore seems clear
that state compulsion on religious officials to perform same-sex
marriages contrary to their religious beliefs would violate the
guarantee of freedom of religion under s. 2(a) of the Charter. It
seems apparent that, absent exceptional circumstances which we cannot
at present foresee, such a violation could not be justified under s. 1
of the Charter. . . . [C]oncerns were [also] raised about the
compulsory use of sacred places for the celebration of such marriages
and about being compelled to otherwise assist in the celebration of
same-sex marriages. The reasoning that leads us to conclude that the
guarantee of freedom of religion protects against the compulsory
celebration of same-sex marriages suggests that the same would hold
for these concerns."
UNITED KINGDOM
During the passage of the Human Rights Act
1998 through the UK Parliament some religious organizations expressed
concern that they may be compelled to solemnize marriages contrary to
those organizations' religious convictions. Would, for example,
churches be required to conduct marriage ceremonies for divorced
persons or same-sex couples? Churches, whilst not generally 'public
authorities' in section 6, and thus caught by the Convention, might,
in some situations, be deemed to be so where they undertook 'functions
of a public nature', marriage being one of those specifically
mentioned by the Government. The right to marry in Article 12 of the
European Convention might one day redefined as embracing same-sex
marriage. Thus, the argument ran, any religious body discharging the
public function of solemnizing marriage would be obliged to respect
this right to homosexual marriage, despite that body holding religious
convictions to the contrary.
The right to solemnize marriages was to the fore again during the passage of the Gender Recognition Act 2004. This Act represents, in large part, the UK response to the Goodwin case in 2002 (Goodwin v. United Kingdom (2002) 35 EHRR 18), in which the European Court of Human Rights held that the lack of legal recognition given to a post-operative transsexual breached her right to respect for her private life in Article 8 and her right to marry under Article 12. The Act allows a new birth certificate to be issued in the acquired gender and creates a criminal offence if the original birth sex is disclosed by a person who acquired that information in an official capacity. Where the gender recognition certificate is issued the person's gender becomes 'for all purposes' the acquired gender. The Act thus, for example, allows a man to obtain a certificate stating he was born a woman and thereafter enables him to legally marry another man.
Various religious groups raised concerns
with the potential impact of the Act upon religious freedom. There was
the prospect of expensive litigation if churches were required to
defend their right not to, for instance, have a transsexual teach in
Sunday School or take part in ceremonies such as marriage, communion
and worship.
The Government's response was to reject all but one of a series of amendments expressly protecting religious bodies. So, for example, an attempt to allow limited disclosure of a person's birth gender to religious organizations to enable them to determine marriage, membership and employment matters involving transsexuals was unsuccessful. The one amendment it did accede to was the inclusion of a conscience clause in the Gender Recognition Bill to address the solemnization of marriage. Originally, it was worded to provide an explicit exemption for ministers of the Church of England and the Church of Wales-based on the premise that these were the only religious bodies legally required to conduct marriages. Subsequently, the exemption was widened to cover ministers of other denominations and faiths. Hence, the Marriage Act 1949 had the following new provision inserted:
5B
Marriages involving person of acquired gender
(1) A clergyman is not obliged to solemnise the marriage of a person if the clergyman reasonably believes that the person's gender has become the acquired gender under the Gender Recognition Act 2004.
(2) A clerk in Holy Orders of the Church in Wales is not obliged to permit the marriage of a person to be solemnised in the church or chapel of which the clerk is the minister if the clerk reasonably believes that the person's gender has become the acquired gender under that Act.
The Government's response was to reject all but one of a series of amendments expressly protecting religious bodies. So, for example, an attempt to allow limited disclosure of a person's birth gender to religious organizations to enable them to determine marriage, membership and employment matters involving transsexuals was unsuccessful. The one amendment it did accede to was the inclusion of a conscience clause in the Gender Recognition Bill to address the solemnization of marriage. Originally, it was worded to provide an explicit exemption for ministers of the Church of England and the Church of Wales-based on the premise that these were the only religious bodies legally required to conduct marriages. Subsequently, the exemption was widened to cover ministers of other denominations and faiths. Hence, the Marriage Act 1949 had the following new provision inserted:
5B
(1) A clergyman is not obliged to solemnise the marriage of a person if the clergyman reasonably believes that the person's gender has become the acquired gender under the Gender Recognition Act 2004.
(2) A clerk in Holy Orders of the Church in Wales is not obliged to permit the marriage of a person to be solemnised in the church or chapel of which the clerk is the minister if the clerk reasonably believes that the person's gender has become the acquired gender under that Act.
The right to refuse to allow a church
building to be used for a marriage ceremony was, it seems, not claimed
by the Church of England.
--
Associate Professor Rex J Ahdar
Faculty of Law
University of Otago
PO Box 56
Dunedin
NEW ZEALAND
phone: (64) (3)
479 8852
fax: (64) (3) 479 8855
email:
[EMAIL PROTECTED]
Faculty of Law
University of Otago
PO Box 56
Dunedin
NEW ZEALAND
phone:
fax:
email:
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