17 November 2005

Marriage (Gender Clarification) Bill: do we fight (all parts of) it?

[My comment on NoRightTurn:Fighting the marriage bill reposted here] I'm a firm advocate for glb/same sex couple rights - having been heavily involved in the civil union campaign. However, one thought I've been mulling over is whether codifying, at this time, that marriage is between one man and one woman is as bad as it first seems. (I am, though, firmly opposed to the other egregious clauses in the Bill!) This part of the Bill reflects the current legal position following the Quilter case. While it technically could be revisited and overturned in the future, it is unlikely in the foreseeable future. As much as that hurts and is an affront to the dignity of same-sex couples (even with the “separate but equal” civil unions framework), that is the legal reality we presently face. In some respects, there may be some benefit in maintaining a focus point for the discrimination. It reminds us every day that the legal framework in our country still treats same-sex couples as second-class citizens. It’s one thing to point to the three (rather oblique) judgments of the majority of the Court of Appeal in Quilter as the source of the discrimination; it’s another to point to express statutory wording: - Section 3(3): “For the avoidance of doubt, marriage may only occur between one man and one woman." - Section 2A: “A person may not marry another person of the same gender." I think having some symbolic manifestation of the discrimination in our legislation leaves something for our future glb generations to fight against. PS I should add that these are tentative thoughts. My instant reaction is to fight the d*mn thing. Unjustified discrimination like this has no place on our statute books!


Graeme Edgeler said...

Just my first thoughts too:

"(I am, though, firmly opposed to the other egregious clauses in the Bill!)"

I'm just trying to work out which these clauses are. There are only four substantive clauses (cll 3~7), Certainly cl 7, inserting a s 19(3) in BORA, but the only one then left is new s 15A:

"15A Certain unions are not marriages
A union solemnised in a foreign country between two people of the same gender is not recognised as a marriage in New Zealand."

I suspect I'm less liberal than either you or No Right Turn, but (assuming one may not mind the clarification of marriage) I can't see anything *egregious* about this. Sure, I recognise reasons to oppose it, but if marriage is to be between one male and one female, it makes some sense to (only) recognise foreign-solemnised glb partnerships as civil unions.

Dean Knight said...


I was thinking particularly about the Bill of Rights amendment (I think I was tired and got the plural/singular wrong!).

The recognition of international marriages is an interesting point but falls under my rant on the definition of marriage point. Although, it is interesting in its own right. My understanding is that there is a legal tradition of recognising overseas marriages even though they may not conform with our model - except where it is against public policy to do so. That means, I think, we may recognise some polygamous marriages - if that was permitted in the original country (but wouldn't recognise a marriage between an adult and a child regardless of whether it was legal back in their home).

Gooner said...

So you are in favour of justified discriminaiton?

Dean Knight said...


As a legal scholar and practitioner, that's where - in my view - the action is. Our Bill of Rights and our Human Rights Act recognise the freedom from discrimination is not absolute and rational, tightly-circumscribed, jusfiable limitations on rights are permissible (often arising because of counterveiling rights). For example, I support the right of religious groups (if genuinely part of their faith) not to perform civil unions or non-religious marriage. I support postive discrimination in education (like, eg, law schools measures to support maori and pacific students). I support other measures which are clearly and overwhelming in the public interest, eg, banning of sale of fireworks or spray cans to under 18s. I support them as long as a genuine, robust and fair case can be put for their justification.

(As an aside, I don't really understand why Judith Collins attack on Maori protocol at school events is described as part of the campaign to eradicate political correctness. Have they forgotten the reason why she wants it eradicated? Something about equality for women? Isn't that one of the flagships of Political Correctness? I mention this because I think the great intellectual contests in human rights jurisprudence are not about 1 right but are about 2 counterveiling rights: religion vs gay rights; ethnic practices vs women's rights; freedom of expression and minority rights [hate speech]. How do we mediate the conflicts? One thing is clear though, it's not really a case or to PC or not to PC... it's a debate *within* PC!)

Anonymous said...

Judith Collins' attack on tikanga is racism, pure and simple. The Nats want to win power and implement a radical new right agenda by appealing to redneck bigots. IMHO, they stand a good chance of success. Something about reaping whirlwinds comes to mind.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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