Religious Parameters and the Law: Lessons for LGBT Communities

February 27, 2015 in General

In the New Zealand Law Journal (February 2015), Richard Pidgeon has produced a concise but highly readable article on what constitutes the parameters of a religious organisation, and how this intersects with litigation and public interest. So, what relevance does this have to LGBT communities and individuals?

What is a ‘religious organisation?’ According to an Australian case, Church of the New Faith v Commissioner of Payroll Tax (1983) Commonwealth Law Review,  it does not necessarily involve belief in a supreme being or beings. However, it should involve belief in the ‘supernatural;’ coherent doctrine and codes of conduct and personal behaviour for its members; an identifiable group or corporate identity; and a collection of ideas and practices. Section 15 of the New Zealand Bill of Rights Act 1990 provides protection for religious assembly, worship, speech, conscience and belief, but not absolute freedom of religious practice, given that some religious practices conflict with civil secular law. One example is the religious practice of Jehovahs Witnesses to refuse blood transfusions, which may endanger the life of their children. Against this, religious adherence is a recognised criterion for refugee or asylum status in New Zealand (as is sexual orientation).  Sometimes, secular law conflicts with specific religious practices and should prevail under such circumstances.  Bigamy is not legal or illegal due to specific religious doctrine, it is because polygamy and bigamy are viewing as constituting separate secular sources of harm to others- Ussher v Ussher [1912] 2 IR, an Irish case.  Bigamy is illegal in New Zealand under Section 205 of the Crimes Act 1961.

What happens when there is internal dissent over the parameters of permissible doctrine, as is the case within some liberal denominations over matters such as the ordination of out lesbian or gay ministers, or religious same-sex wedding ceremonies? When doctrinal disagreement occurs over such matters, it can result in litigation- see the Gay and Lesbian Clergy Anti-Discrimination Society v the Bishop of Auckland [2013], which centred on a gay Anglican ordination candidate and obstruction from the Anglican Bishop of Auckland.  Doctrinal problems can often spill over into property disputes, especially if specific religious organisations run charitable trusts for specific purposes.  Litigation can and has include(d) rejection of core governance structures for a given religious organisation, appropriation of charitable trusts for purposes originally unspecified in their original charters of inception or constitutions, sudden doctrinal variations and the excesses of charismatic religious individual leadership without adequate organisational safeguards. As a British Sikh case, Shergill v Khaira [2012] noted, there may also be debates over trustee status and governance related to contested succession and supreme authority within some religious-related litigation.

Pidgeon concludes by citing numerous instances of case law that refer to specific religious property and asset disputes, indicating that the venerable separation of deity and mammon may well be more observed in the breach than in doctrine. Instances of litigation in New Zealand and elsewhere have centred on ownership or use of religious property, disposal of trust assets upon dissolution, leadership succession disputes, church disciplinary procedures and their adjudication and intransigent resident clerics who refuse to vacate organisational residences or premises despite termination of employment as ministers of specific faiths.  Dear me. One is reminded of another venerable aphorism about unstable foundations and divided houses.  Here endeth the lessons…

Source: Richard Pidgeon: “Resolving Religious Disputes in New Zealand (Part 1)”:  New Zealand Law Journal: February 2015: 33-37.

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