[Full decision: 2013_NZHRRT_36__GLCADS_v_Bishop_of_Auckland.pdf]

IN THE HUMAN RIGHTS REVIEW TRIBUNAL

Gay and Lesbian Clergy Anti-Discrimination Society Inc v Bishop of Auckland [2013] NZHRRT [36] (17 October 2013)

Discrimination – exception where qualification needed for a calling for the purposes of an organised religion and limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion – meaning of – Human Rights Act 1993, ss 38 and 39(1)

Discrimination – marital status – unmarried de facto relationship – sexual orientation – Human Rights Act 1993, s 21(1)(b) and (m) – Marriage Act 1955, s 29(2) – Marriage (Definition of Marriage) Amendment Act 2013, s 4

Religion – religious liberty as a collective right – International Covenant on Civil and Political Rights, Article 18 – New Zealand Bill of Rights Act 1990, ss 13, 15 and 20

Religion – whether court or tribunal should determine ecclesiastical disputes where matters of faith or doctrine at issue – doctrine of Anglican Church on Christian marriage – sexual orientation and the ordination of deacons and priests

To be ordained as a priest or deacon of the Anglican Church in Aotearoa, New Zealand and Polynesia (the Anglican Church) a person must, inter alia, “be chaste”. Chastity is defined by the Canons of the Church as “the right ordering of sexual relationships”. Such relationships can only occur within a Christian marriage which is defined by the Formularies of the Church as a physical and spiritual union of a man and a woman.

Thus a person seeking to enter the ordained ministry of the Anglican Church must either be single and celibate or in a heterosexual marriage. Those ineligible for entry include those in a heterosexual de facto relationship and those in a homosexual relationship which is committed and monogamous in nature. Being gay or lesbian is not in itself a bar to ordination. But any candidate not in a marriage between a man and a woman must be celibate.

Believing that he may be called to ordained ministry in the Anglican Church, Mr Eugene Sisneros sought to enter a time of discernment during which his sense of call would be tested and a decision made by a bishop whether training for the ministry should begin.

The Bishop of Auckland, Bishop Ross Bay, refused to allow Mr Sisneros to participate in the process of discernment because Mr Sisneros was in an unmarried relationship and could not therefore be ordained into the ministry.

Mr Sisneros says he was thereby discriminated against on either or both of the following grounds:

(a) His marital status (being in an unmarried de facto relationship) (direct discrimination).

(b) Because of his sexual orientation ie being homosexual (direct or indirect discrimination).

Prima facie it is unlawful under the law of New Zealand for a person seeking entry to a calling to be treated differently by reason of any of the prohibited grounds of discrimination listed in the Human Rights Act 1993, s 21.

However, s 39 provides an exception. Discrimination is not unlawful where (inter alia) the authorisation is needed for a calling for the purposes of an organised religion and is limited to persons of that religious belief “so as to comply with the doctrines or rules or established customs of that religion”.

The primary issue for determination by the Tribunal in this case was whether the s 39 exception applies to the facts of the case.

Held:

1. It was not the function of the Tribunal to second guess the Anglican Church as to what its doctrines and teachings should be or how those doctrines and teachings should be interpreted. This is a common law principle of long standing. (See paras [10] to [12]).

Gregory v Bishop of Waiapu [1975] 1 NZLR 705, Mabon v Conference of the Methodist Church of New Zealand [1998] 3 NZLR 513 (CA), Marshall v National Spiritual Assembly of the Bahá’is of New Zealand Inc [2003] 2 NZLR 205, Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 AC 28, Hasan and Chaush v Bulgaria (2002) 34 EHRR 55 (Grand Chamber, ECHR) referred to.

2. The doctrines or rules or established customs of the Anglican Church permitted ordination into the ministry of only those who were celibate or in a Christian marriage as defined in the Formularies of the Church. Ordained ministers were also required to be “chaste”. (See para [38]).

3. Article 18 of the International Covenant on Civil and Political Rights, 1966 guaranteed the right to freedom of thought, conscience and religion. It included freedom to have or to adopt a religion or belief of choice and freedom, “either individually or in community with others and in public or private” to manifest religion or belief in “worship, observance, practice and teaching”. As pointed out by Rivers in The Law of Organized Religions: Between Establishment and Secularism (Oxford, 2010) at 39, Article 18 is phrased individualistically in that it is the individual person who may manifest his or her religion in the community with others. But the fact that individuals normally require like-minded communities to be able to exercise their religious rights effectively is sufficient justification for accepting that religious associations as juridical persons are also beneficiaries of subjective rights under Article 18. The point is more fully explained by Nowak in UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev ed, NP Engel, Kehl, 2005) at p 411. (See para [40]).

4. The right of religious communities to determine and administer their own internal religious affairs without interference from the state is referred to as religious group autonomy (or “church autonomy”, to use the traditional label). See Ahdar and Leigh op cit 374 where it is noted that the importance of religious group autonomy to any overall scheme of religious liberty has been described as “most important”, “critical”, and “exceptionally high”. (See para [42]).

5. An aspect of religious liberty as a collective right is the right of a church to choose its own ministers and leaders. See for example R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex parte Wachmann [1993] 2 All ER 249 (QB) at 255 and Hasan and Chaush v Bulgaria at [62] and [82]. The selection of candidates for ministry has been described as one of the very core aspects of religious association autonomy: Ahdar & Leigh op cit 395. (See paras [43] and [44]).

Rayburn v General Conference of Seventh-Day Adventists 772 F 2nd 1164 (4th Cir 1985) and Hosanna-Tabor Evangelical Lutheran Church and School v Equal Employment Opportunity Commission 565 US _ (2012), 181 L Ed 2d 650 referred to.

6. The fundamental difficulty with the plaintiff’s argument was that it not only failed to take into account the text of s 39(1), it also failed to take into account the purpose of the provision. (See para [83]).

7. The fallacy in the plaintiff’s argument was that sex and religious belief are not mentioned in s 39(1) so as to prescribe them as the only allowable grounds of discrimination in ordination decisions. Rather, they are mentioned as part of the description of the type of qualification to which nothing in s 38 applies. The plaintiff had to reword s 39(1) to make it aimed at refusals, rather than at a type of qualification. (See para [91]).

8. It was clear that the purpose of s 39(1) was (in the present context) to preserve the institutional autonomy of organised religions in relation to their decisions concerning the appointment of clergy and ministers. The plaintiff’s interpretation would entirely negate that purpose. (See para [92]).

9. Both the language and purpose of s 39(1) required the rejection of the artificial construction advanced by the plaintiff society and acceptance of the interpretation relied on by the Bishop of Auckland. Because s 39(1) of the Human Rights Act had application to the facts, there was no element of unlawfulness under the Act when the Bishop of Auckland addressed the request by Mr Sisneros that he (Mr Sisneros) be permitted to enter the discernment process. (See paras [96] and [97]).

Other cases mentioned in the decision

Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767

Haupini v SSRC Holdings Ltd [2011] NZHRRT 20

R v Secretary of State for Trade and Industry [2004] EWHC 860

[Full decision: 2013_NZHRRT_36__GLCADS_v_Bishop_of_Auckland.pdf]

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