The much-predicted homo-hating iron fist of Pope Benedict XVI has finally taken shape in the last few weeks, following an official edict from the man the Catholic Church claims is God's representative on earth that gay men are to be barred from joining the priesthood. But could this be the decision that, ironically, sees the Church dragged kicking and screaming into the 21st century? In New Zealand, at least? While the world's most powerful drag act may, in the plush surroundings of his Vatican appointments, consider himself to be above the law, it may not be necessary for gay clergy here on the receiving end of his punishment to seek out Knight Rider for justice. The Human Rights Act 1993 prohibits discrimination in employment on the basis of sexual orientation, and while special rights have been granted to religions within this that allow them to apply for exemption, this is by no means black and white. In fact, the Human Rights Commission considers the issue so complex that it has no definitive position on it. A discussion paper on gay/lesbian clergy in relation to the Human Rights Act was prepared by the Commission in January 2003. Five legal opinions were sought from senior lawyers with expertise in the field of human rights law, many of which differed. The Commission concluded that “such are the uncertainties in the interpretation and application of the Human Rights Act to the position of lesbian and gay clergy that no definitive position, on some of the issues at least, could be adopted in the absence of rulings from the Courts. The application of the Human Rights Act will vary from one case to another according to the circumstances of each case.” Robert Halliwell is the legal counsel for the Human Rights Commission. If a priest or seminarian ousted on the basis of his sexual orientation wished to make a complaint against the Church, he says, the onus would be on the Church to show how the special ‘religious exemption clause' applied in that particular case. “You'd have to show that there's a religious opinion, or a religious belief requirement attached to why you say there should be discriminatory treatment,” he says. “The Church would need to establish the elements within the exception. So they would need to show it was a matter of religious belief that said there can't be gay priests, even if they're celibate.” And here is where it gets interesting. When examining the reasons why the Church is enacting the ban, we find no reference from Pope Benedict to scripture – only his unqualified psychological diagnosis of the entire gay male population. We've been told that this ban is the Church's response to the paedophile priest scandal. The specific text of Benedict's instruction reads that “homosexual men should not be admitted to seminaries even if they are celibate, because their condition suggests a serious personality disorder which detracts from their ability to serve as ministers.” But homosexuality is not a personality disorder, and neither is it related to paedophilia. Both are scientific facts, and it's been over thirty years since homosexuality was declassified as a mental illness by the American Psychological Association, the world's largest body of psychologists. If the Pope wants to discriminate against gays and use Christian junk science to back himself up, surely he'll find himself chucked out on his ring in a court of law? Religious belief is one of twelve statutory exemptions covered in the Human Rights Act, however most of the others have a tangible, logical and rational basis: i.e. a counselling service catering to victims of rape being able to exclusively employ female counsellors. Others respect the rights of the individual; for example, the employment rules do not apply to private citizens employing people to baby-sit their children. However, collective entities like churches claiming the benefit of the religious exemption will need to do more than simply say ‘we thought it was a good idea' when asked to justify their discriminatory policies. “This is one of the interesting questions that has been looked at,” Halliwell says. “To what extent can a court or tribunal test the veracity of the religious belief? And that certainly is something that can be challenged. It can't be just mere assertion, for example: as a matter of religious belief, all dogs need to be killed every second Sunday or something like that.” Having said that, the religious exemption in the Human Rights Act is a powerful barrier. All five of the Commission's independent lawyers concluded, albeit for different reasons, “provided the refusal to ordain or engage homosexual clergy can be properly described as a matter of religious belief in the relevant Church, the Human Rights Act does not forbid sexual orientation discrimination.” And defining religious belief, at least when it comes to the tax department, can be as simple as name-dropping Jesus. Given the benefits that the state grants to religions through tax breaks, why were religions granted special treatment under the Human Rights Act? Doesn't the state have an interest in the activities of religions if it is subsidising their operations? “There's an argument in that,” concedes Halliwell. “But the counter-argument is that New Zealand is a secular country and there's a separation between church and state, and neither exists to tell each other what to do. The exemption of sexual orientation in clergy exists perhaps to reflect that. You can argue these things from either way.” Another sticking point is the differing legal opinion over whether priests actually fit the definition of ‘employment': “There is a very respectable legal argument that says clergy aren't in an employment situation at all, which means the Human Rights Act does not apply,” says Halliwell. However, tenacious clergy who wish to make a stand may eventually find themselves in possession of the slingshot they need to fell Goliath. “Court cases don't happen in a vacuum. People bring them for all sorts of reasons,” says Halliwell. “Some people bring them knowing their prospects of success are not high, but it's not the ultimate aim, the ultimate aim is some other change. They may not be able to change something that's entrenched, but they may feel they've got their point across at a higher level. Something might stick and cause change to happen further along the track.” But it will all be up to that individual, or group of individual, who choose to make that stand. Despite popular belief, the Human Rights Commission is not an unstoppable juggernaut capable of autonomous witch hunts. “The critical thing in any complaint is that the complainant determines how far and how wide they want to push it,” Halliwell concludes. “If they say 'can you just make a few enquiries,' and then say 'that's enough I don't have my heart in it,' we'll generally leave it there.” Unfortunately, the sixteenth Pope to choose the name Benedict has absolutely no intention of leaving it there. Lyndsay Freer, spokesperson for the Catholic Church in New Zealand, says it is too early to tell whether seminaries will be investigated for "evidence of homosexuality" as is planned in America. She told the Sunday Star-Times that gay people were welcome in the church, and she did not believe celibate gay priests faced expulsion. "If they're living good lives and clearly celibate, I don't see why they would be,” she said. Pity she's not in charge. Chris Banks - 8th October 2005