Reverend seeks assurance from Hong Kong court he will not be prosecuted for officiating same-sex marriage ceremony
- Marietta S Balaoro files unprecedented application to High Court after he was asked by same-sex couple to marry them last year
- Marriage Ordinance states it’s an offence for minister to wilfully celebrate a marriage knowing parties involved cannot comply with all legal provisions
A pastor from an LGBT church has filed an unprecedented application to a Hong Kong court calling for a guarantee he would not be prosecuted if he officiated a same-sex marriage ceremony.
Reverend Marietta S Balaoro asked the High Court for assurance after he was asked by a same-sex couple to marry them last year, according to his court filing.
It could amount to an offence according to the Marriage Ordinance, punishable by a substantial fine and a maximum jail term of two years.
In his court filing on Friday, Balaoro’s lawyers argued the criminal sanction would be unconstitutional and breach his rights guaranteed under the city’s Bill of Rights and Basic Law, the mini-constitution.
“[It] unconstitutionally prohibits the exercise of freedom of religion,” his barristers, Philip Dykes SC, Azan Marwah and Vidler & Co Solicitors wrote.
“[It] constitutes … discrimination on the grounds of religion and sexual orientation.”
The pastor was bestowed his title at the LGBTS Christian Church (Philippines) six years ago – the S stands for straight to emphasis beliefs inclusive to all – and has since been active in Hong Kong, mostly performing pastoral work at Studio 94 in Sheung Wan.
All we ask for is to be allowed to worship and practise our religious faith in the eyes of God, free from the threat of persecution
Balaoro, a transgender man, performed 13 same-sex holy unions – a lesser form of partnership which does not entail the marriage vow – since he had been in the city.
“All we ask for is to be allowed to worship and practise our religious faith in the eyes of God, free from the threat of persecution,” Balaoro said.
He was arrested in August 2017 on suspicion of breaching the ordinance but was not charged.
In the following January, he was approached by a same-sex couple who wanted him to celebrate their marriage. It prompted him to write to the Department of Justice for the assurance.
The Marriage Ordinance stated it would be an offence if a minister wilfully celebrated a marriage knowing the parties involved could not comply with all the provisions in the legislation. It included the definition of marriage in Hong Kong, which is “the voluntary union for life of one man and one woman to the exclusion of all others”.
The ordinance also criminalised anyone who pretended to officiate a marriage without being legally competent to do so.
Without a constructive response, Balaoro took the secretary for justice to court to seek a determination.
His lawyer argued the rite of marriage was clearly a religious activity protected by the city’s rights law and constitution.
Nobody should be subject to arrest or threat of prosecution merely for performing the religious rite of marriage
But the ordinance prohibited the ritual unless the participants were in line with a certain religious definition.
“As a result, the applicant … is prohibited from performing marriage rites according to the applicants’ religion, a sect of the Christian religion, which specifically includes same-sex relationships in their rite of marriage,” the lawyers said.
Under the current legal framework, only heterosexual couples could enjoy the religious rite of marriage, the lawyers added.
“This amounts to discrimination on the basis of sexual orientation since only homosexual people are affected by such restrictions,” they said.
Lawyer Michael Vidler said: “Nobody should be subject to arrest or threat of prosecution merely for performing the religious rite of marriage.”
