18 April 2013

#MarriageEquality, Quilter and all that

Today was filled with joy, emotion and pride. But also reflection, reflection on the role of law and social reform. Marriage equality has been a long battle.

I sat in the public gallery of the Court of Appeal during argument in Quilter v Attorney-General in September 1997 and was puzzled and disappointed by the slam-dunk decision. A common law definition discriminated against gays and lesbians? Of course the courts must, in accordance the interpretative direction in the NZ Bill of Rights Act, rule in favour of a rights-consistent meaning? Surely? Sadly, no, the judges took a different view (including, embarrassingly nowadays, the preliminary point about whether opposite sex married discriminated against gays and lesbians).

Fast forward to today. A little older and wiser, perhaps. I can't help but think that today's victory on the floor of Parliament is so much sweeter than any quick-fire result in a courtroom could have been. Not only has the law been changed, but it has been changed with resounding parliamentary and public support.

Sure, that's been a struggle and has taken time and effort. The Civil Union campaign in 2004/2005 was hugely significant. As a model, civil unions were the right thing to pursue - and, for many, they continue to be the preferred model for recognising relationships. And the Relationships Bill sorted out almost all the legal benefits, protections and responsibilities for married, civil union, and de facto couples - allowing the focus to turn to ceremonies and societal recognition. As important, though, was the public debate, even with its then fire and brimstone. The discussion and deliberation about the legal recognition of all loving relationships chipped away the opposition.

Less than a decade later, with the sky not having fallen, #MarriageEquality was an entirely different proposition. The reform was able to cruise on the wave of public support. Especially heartening were the vox pop; views sought from everyday folk on gay marriage only for them to reply, "Didn't we sort this out ages ago?", expressing indignation that the law still discriminated against gays and lesbians.

In the end, 77 votes to 44. And the refrain of Pōkarekare Ana being sung on both sides of the House and galleries above. For me, that symbolised law and law-making at its best. Principled, passionate, cross-party, and - perhaps most importantly - enduring. The reform now has legitimacy and support which means it is most improbable it will ever be unwound.

There is, no doubt, much more to reflect on in terms of this study of social law reform. Perhaps even a scholarly note or two on the these different campaigns, their different themes, their interrelationships, and their incrementalism.

But, for now, it is sufficient to say the tears of joys when the Marriage Amendment (Definition of Marriage) Bill was read a third time make up for, many times over, the sense of disappointment when the original battle in Quilter v Attorney-General was lost.

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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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