Solemnisation of Same-Sex Marriage and Religious Freedom

Abstract

Same-sex marriage is legal or likely to be legalized in many Western nations. One important safeguard invariably incorporated in the legislation providing for same-sex marriage has been an exemption for religious ministers who object to solemnizing such marriages. Another category of potential objectors consists of marriage registrars, commissioners or celebrants employed or appointed by the state. By contrast, an accommodation grounded in the right of religious freedom and conscience for these governmental celebrants has not been granted.

This article examines the introduction of same-sex marriage in three jurisdictions – England and Wales, New Zealand and Canada. It analyses the precise ambit of the exemption for religious celebrants, considers the vulnerability of such exemptions to future legal challenge and questions the validity of denying free exercise accommodation to state-appointed celebrants.