Same-Sex Marriage and Religious Exemption under the Marriage Act: Where Does Section 29 Leave Religious Objectors?

This paper analyses the implications of section 29(1) of the Marriage Act 1955 for marriage celebrants wishing to refuse to solemnise same-sex marriages on religious grounds. Section 29(2) of the Marriage Act (as amended in 2013) allows a limited religious exemption for some celebrants, but not all are covered by this provision. Those not included (namely independent celebrants) can only refuse to solemnise a marriage if section 29(1) allows such a refusal. This paper asserts that when solemnising marriages, celebrants perform a ‘public function’ and are therefore subject to human rights obligations arising from the New Zealand Bill of Rights Act 1990 (NZBORA). These obligations are not overridden by section 29(1), so a celebrant can only refuse to solemnise a marriage if NZBORA allows this. A refusal to solemnise a same-sex marriage on religious grounds limits the right to freedom from discrimination in a way that is demonstrably justified in a free and democratic society, and thus permitted by NZBORA. Section 29(1) therefore provides a broader protection for celebrants than section 29(2), allowing all celebrants to refuse to solemnise same-sex marriages on religious grounds.