Refusing Your Rights With A Clean Conscience

In recent weeks, a matter of contention has come up between Samtökin 78, The National Queer Organisation, and the National Church. While the two generally coexist with little friction, a clause in supplemental documents to the 2010 marriage laws (that changed the legal definition from being “between a man and woman” to “between two individuals”) has Samtökin 78 threatening litigation against the state.

The clause states that ministers are allowed to refuse to marry people, such as same-sex couples, if it conflicts with their religious beliefs. The problem with the clause is that ministers from the National Church—a state church—are public servants: if they refuse to marry a same-sex couple, it’s as if the state itself had done so, which goes against the Constitution’s Article 65 on equality before the law.

Now the increasingly proactive National Queer Organisation and civic activists are calling for an end to what they claim to be systematic discrimination. Both the Ordination Bishop and former Bishop of Iceland have expressed the importance of the clergy being allowed to follow their own convictions, but the Minister of the Interior has been frank in stating that if they are operating as public servants performing a legal service, they cannot refuse on religious grounds. A lot has been said, but so far no action has been taken.

We met up with Samtökin 78 chair Hilmar Hildarson Magnúsarson, to get to the bottom of the situation.

The Rebel Minister

Before becoming a minister in the east of Iceland, Davíð Þór Jónsson was no stranger to controversy. He first drew the public’s ire as one half of a raunchy comedy duo called Radíusbræður, before taking a job editing Iceland’s token soft porn magazine, Bleikt & Blátt.

Despite his role within the National Church, Davíð is still known as a contrarian figure by his colleagues.

When we reached out to him for comment on the freedom of conscience clause, Davíð was very clear in laying out what he believes are the only two real possible solutions.

“When a minister performs a burial, he does so as a member of the church,” he says. “He can’t do it without a death certificate from the county office, which involves removing the person from the national register and such. The same goes for giving a baptism, which can’t be done unless both parents belong to the National Church. It doesn’t matter how often I perform the ceremony, the parents still need to fill out and file the right papers. But the moment I marry someone, I’m both a minister and an officer of the state that can perform a legally binding ritual. Even if my religious freedom is very important to me, I can’t use it to discriminate against those I marry. So it’s impossible for a minister to both enjoy religious freedom and act as public servant at the same time. My solution to the problem is to either remove the freedom of conscience clause, or to treat marriage ceremonies like funerals, baptisms, and confirmations, where the legal procedure takes place with the civic body before the church’s ritual is performed.”

Davíð says both solutions will be met with resistance, in particular the second option, as ministers will loathe relinquishing their power, probably arguing that it will in some manner diminish the sanctity of marriage if a county clerk signs the paperwork instead of a church official. “But does it diminish the sanctity of a burial if the death certificate has already been filed?” Davíð asks. “No, that’s ridiculous. It’s just paperwork.”

What can you tell us about the lawsuit that you’re considering filing against the state?

There is a long tradition of civil rights groups using strategic litigations to further their cause. But it’s not like we’re filing our charge tomorrow—we have to weigh our options and make an informed decision with our lawyer. For now, given how the Minister of the Interior has been speaking of late, I want to wait and see how she’s going to tackle the case. I’ve felt, judging from what the discourse has been like, that people understand the gravity of the situation.

Both the Ordination Bishop and former Bishop have stepped forward to defend the freedom of conscience as one of society’s most important human rights. How do you respond to that?

I have a hard time understanding how denying a certain group public service is one of society’s most important human rights… There are precedents set by the European Court of Human Rights, where the court has clearly stated that while religious freedom is important and deserves protection, it can never be used to invalidate other individuals’ rights. But honestly, I feel talking about this as a matter of conscience to be of poor taste. Is it really so terrible to bless the union of a same-sex couple?

Do you know of any cases where same-sex couples have been refused marriage?

Not personally, no, and I’m sure if it had happened that we’d have found out and already reacted to it.

So if that’s the case, is there really reason to come down so hard on a clause that hasn’t ever been used?

This is a matter of principle. I doubt that anyone else would like to be treated this way by the authorities, so why should we? I could also turn this around and ask: if this doesn’t matter at all, then why have people been fighting so hard to keep this nasty clause? Isn’t it because they would like to be able to use it? I’m saying there shouldn’t be any such opportunities. Is that too much to ask for? To be treated like other citizens under the law?

Recently, the entire board of the Ministers’ Association said in a joint statement that this freedom of conscience clause didn’t overrule people’s constitutional right to equality. What do you think of that?

I haven’t looked into what they said in detail, but if that’s the church’s new stance, I welcome it. In my mind, however, the matter is in the hands of the government and Parliament. The church can have their opinion, but it’s larger than just that, and the authorities have to make a clear ruling on the matter.

Before same-sex marriage was allowed, the more progressive ministers used their freedom of conscience to bless civil unions. Aren’t you afraid that restricting this freedom will hamstring the progressive elements of the church?

Not at all. The church is made up of all kinds of people, many of whom have fought for our cause. Sometimes they’ve managed to influence policy, and sometimes not. We’re very thankful to these people. I am generally optimistic and think most people will eventually see the unfairness in the current situation. I am thus not worried about this leading to a step backwards.

In your opinion, what would be the best possible outcome of the matter?

The affirmation of same-sex couples’ equal rights before the law compared to other people. I don’t think anyone outside Parliament can provide that.

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See Also:

Drawing A Line In The Sand
When Samtökin ’78, the National Queer Organisation of Iceland, showed up at the police station on April 26 to file charges against ten different individuals who had made hateful, threatening or defamatory comments towards queer people that they felt warranted criminal investigation, they entered uncharted waters. Until then, the organisation had met hate with positivity and education, but following a rise in hostility and mounting pressure from their own ranks, they decided enough was enough.

National Queer Organisation Seeking Enforcement Of Hate Speech Law
The National Queer Organisation (Samtökin ’78) has harshly criticised police for not enforcing Iceland’s hate speech law, and intend to go to the State Prosecutor to see that charges are filed.