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August 9, 2010 | by  | in Opinion | [ssba]

End the social engineering and legalise gay marriage

Argentina, a predominantely Catholic country, recently became the first Latin American country to legalise the marriage of same-sex, when a vote passed through the senate 33 votes to 27, with 3 abstentions.

New Zealand’s Marriage Act 1955 does not actually define marriage, but our current jurisprudence applies the term only to heterosexual couples. The Civil Union Act 2004, one of the most important legislative social changes made by Helen Clark’s Labour Government, allows couples, both heterosexual and homosexual, to enter into a civil union. Apart from civil unions, partners may also acquire legal rights and obligations in relation to each other as a de facto partnership. However, civil unions and de facto partnerships are not marriages; and in fact, many heterosexual couples have entered into civil unions since the passing of the 2004 act or chosen to remain solely in a de facto arrangement in an express rejection of the institution of marriage and all of its historical baggage.

In terms of equality, symbolism and concrete rights, many same-sex couples still want the ability to enter into a marriage. One example of a concrete right affected by the inability to marry is that of adoption. The Adoption Act 1955 provides for adoption by spouses. In a recent case the High Court in Wellington held that spouses, for the purpose of the Adoption Act, could include de facto couples—however the court was very clear that they were referring only to heterosexual de facto couples, and were certainly not opening the door for same-sex de facto couples to adopt.

The New Zealand Bill of Rights Act 1990, section 19, explicitly prohibits discrimination under any of the grounds set out in the Human Rights Act 1993, which includes sexual orientation. Over the years there has been debate in the courts as to whether incorporating only unions between a man and a woman within their definition of marriage discriminates against same-sex couples. One strand of argument is that the prohibition on marrying someone of the same sex applies to everyone and therefore does not discriminate against anyone. However, clearly such a prohibition, in impact, discriminates against homosexual and lesbian couples and is immaterial to heterosexual couples. However, even if the courts found the Marriage Act to be in breach of section 19, and not a justified limitation of this right (provided for in section 5), section 4 of the Bill of Rights establishes that such an inconsistency alone cannot be used to strike down legislation passed by parliament.

Some regard the current position under the 2004 act as the result of social engineering. One’s sexual orientation and choice of a life partner is one of the most personal areas of one’s life, and the law’s continued restriction against same-sex marriage is a prime example of social engineering. The Civil Union Act did not go nearly far enough in ensuring freedom of choice. Consequently, this is an issue that, as in Argentina, our democratically elected law makers need to genuinely address if we are going to see any end to this discrimination on the basis of sexual orientation.


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