Home

E-Mail

This page contains some of my thoughts about topical issues. Some of these are presented as "articles" written for the purpose of putting forward particular ideas, and some are adaptations of presentations I have made at various times.

I hope that these provide some "food for thought", and I would be really interested in feedback, either for or against any of the issues that I canvass here.

Enjoy ...

... Nigel

The following is adapted from a presentation by Nigel Christie for "Project 9 July" at "The Pound", Wellington, New Zealand on 28 January 2004.

The topic for the evening was "Civil Unions, Marriage, or Neither of the Above?". Two presentations were given, one on civil unions and one on marriage. These were followed by an open forum discussion.

IN FAVOUR OF SAME-SEX MARRIAGE

Part 1 - Introduction

The following is from an article in the NZ Herald on 16 July 2003 about the proposal to legislate for civil unions in New Zealand:

"Such unions would probably be certified by the registry of births, deaths and marriages. They are not expected to be religious ceremonies, but marriage celebrants could conduct services. If couples separate, they would be able to dissolve the union after two years, as with divorce."

What I find intriguing is that, for different-sex couples, exactly what this describes can be done now - there is no need for a new law.

What I want you to do now is to picture just that …

When a different-sex couple marries in a religious ceremony, there are actually two things happening …

1. The religious blessing of the marriage; and
2. The sealing of the civil / legal contract between the parties to the marriage.

For a moment, I want to separate out, and put aside in a little box, the religious components. Now, I want to concentrate on what is left.

The easiest way to do this is to think of what we term a "registry marriage". For a couple to get married at the registry office, the following must be in place:

1. The couple must obtain a licence - from a Department of the State.
2. For the couple to obtain this certificate, they must have met the legal requirements - laid down by the State.
3. A marriage celebrant must officiate - that is, a legal officer empowered by, and registered with, the State.
4. The couple must sign a register - a legal record which belongs to the State.
5. Witnesses must sign the register - a common legal practice.
6. After the marriage, the couple will receive a certificate - from a Department of the State.
7. Conversely, there is no requirement for (and often with a registry marriage there is a conscious effort to exclude) any religious component in the ceremony.

In other words, this is the civil / legal registration of a union between the couple. This is a "civil union".

Part 2 - "Justifications" for Civil Unions

So, why are we looking at putting in place a separate statute to enable civil unions if we already, in effect, have this (currently for different-sex couples only) in the form of registry marriage?

The basic reason is to keep us (same-sex couples) out of marriage.

And why is it seen, by some, as being advantageous to keep us out of marriage? In my view, the key reasons are:

1. the protection of the so-called "sanctity of marriage"; and
2. what has been termed "pragmatism".

I will now examine each of these.

Part 3 - "Sanctity of Marriage"

It has been said, in New Zealand, that allowing same-sex couples to enter into marriage could be seen as "besmirching" the sanctity of marriage.

Do any of the following besmirch the sanctity of marriage?

1. The "quickie" marriage - that is, the "Las Vegas / Britney" marriage, the "radio" marriage, the "who wants to marry a millionaire" marriage.
2. The marriage of a wife batterer.
3. The marriage of a child abuser.
4. The marriages of murderers, thieves, arsonists.
5. The marriage of non-believers.
   

Even if any of those are seen as besmirching the sanctity of marriage, are the parties denied the right to marry?
No, their right to marry is upheld by our law.

Why then, do we allow the argument that same-sex couples in a loving, committed relationship would "besmirch" the sanctity of marriage …

Isn't this notion offensive to us? And besides, are we not talking about civil marriage, according to law, not religious marriage.

Part 4 - "Pragmatism"

What is meant by "pragmatism"?

In general terms, this means that civil unions are expected to be a politically achievable means of remedying some practical issues for same-sex couples.

Accepted - there are some practical issues that will be resolved by civil unions.

Unfortunately, what it also means is that we will be compromising our human rights standards.

I have said before, and I am going to repeat again, if we put civil unions in place we will continue to have discrimination in at least three ways:

1. Status -

   Currently marriage and de facto different-sex relationships are seen generally as being more valid than same-sex relationships. I have sat in the public gallery in a court and heard the judge (and a very good judge) describe a long-term same-sex relationship as "a friendship of some significance".

   Civil unions will not enjoy the same legal, social, functional, attitudinal status that marriage enjoys. And, I suspect that same-sex civil unions will not enjoy the same social status that different-sex civil unions will enjoy

2. Freedom of choice -

   Based on personal preferences, some people will choose not to marry, and that is fine. That is really what this debate is about. If, for example, some couples feel that the marriage institution represents the patriarchal, oppressive institution of the past, they can choose not to marry.

   This does not mean that other couples should be denied that freedom of choice. I note that we have not yet decided to repeal the marriage act on the basis that some (many) different-sex couples do not wish to marry.

   However, a couple cannot choose not to marry if that choice is not available. Rather, they are denied that ability to choose.

3. Access to legal entitlements -

   I am yet to be convinced that all the legal consequences of marriage will flow from civil unions. (Ironically, if they do, this would seem to constitute an argument for extending marriage to same-sex couples).

   In fact, the potential incidences of discrimination are increasing as time moves on:

   • As same-sex marriage spreads across more and more countries, issues of portability will arise.
   • In New Zealand, a new element of discrimination will arise in that different-sex couples will be entitled to "convert" their marriages into civil unions (is this a threat to the sanctity of marriage?) and, possibly, to convert their civil unions into marriage. But, same-sex couples will not be entitled to convert their civil unions into marriage (nor, of course, will they be able to marry, and so will not be able to convert marriages into civil unions).
   • The United Nations has just announced that all marriages of its staff members which are valid marriages in their home country, will be recognised for the purposes of their employment with the UN. New Zealand employees will not have access to this potential employment benefit.
     

Part 5 - Summary

While I can accept that there may be some practical, short-term gains from civil unions, I am seriously concerned about the long-term impact that they might have on our struggle towards full equality under the law.

Civil unions will convey the message that same-sex couples should not be recognised in, or treated in, the same ways that different-sex couples are recognised or treated.

It is my fear that civil unions will serve to perpetuate fundamental discrimination against same-sex couples.

• Civil unions are about the riches of a relationship … marriage is about the richness of the relationship.
• Civil unions are about exclusion … marriage is about inclusion.
• Civil unions are about tolerance … marriage is about acceptance.
• Civil unions are about separate but (un)equal … marriage is about equality under the law.
• Civil unions are about the formal recognition of a relationship, what we are seeking is the meaning-making capacity of marriage.

Civil unions are "the same as marriage, except …". And, as soon as we need to say the word "except" - unless that "except" can be justified by way of a valid and objective reason - we have discrimination.

As a human rights lawyer, i cannot accept the compromise of our human rights standards that is represented by the proposed Civil Union Bill.

WE MAY NOT LIKE THE DÉCOR, BUT …

Personal thoughts on relationship recognition for same-sex couples, and comment on whether we should seek registered partnerships or marriage. [1]

When my partner and I prepare to enter the room which contains the legal entitlements of marriage, we do not wish to go through a different door from the one that our straight neighbours or friends go through. We will walk up the front steps, through the main entrance, across the main foyer, and choose which door we want to go through so that we enter the room which houses the entitlements we seek. Once inside that room, we may not like the décor, but we can redecorate. We can repaint the walls, and hang some new pictures. But, we are not prepared to come in through a side door and be directed into one room and excluded from the other.

As same-sex couples in New Zealand currently, we are not even able to enter the building.

When considering access to rights which attach to state recognition of relationships, there is, in fact, only one country in the world where same-sex couples can truly choose which door they are going to enter in order to access those rights. On 1 April 2001, the legislature in The Netherlands opened up their existing marriage law to same-sex couples. They had previously enacted a registered partnerships regime which gives most of the same rights as marriage to same-sex couples and to different-sex couples who choose to register rather than marry.

There are other countries and states which offer registered partnerships to same-sex and different-sex couples. [2] There are still other countries which offer registered partnerships to same-sex couples, but not to different-sex couples, rather than offering marriage. [3]

The legal recognition of same-sex relationships is an issue which has been, and is being, debated world-wide. Following the recent legislation in the Netherlands, Belgium is now giving consideration to opening up their existing marriage legislation to same-sex couples. There are same-sex marriage cases currently before the courts in Massachusetts (USA) and in Toronto and Vancouver (Canada). Several countries are considering whether or not they should introduce registered partnerships. [4]

In New Zealand also, this debate has been occurring for a number of years. The notion of marriage for same-sex couples entered serious public debate here when, in 1997, three lesbian couples went to the High Court seeking a declaration that the Registrar-General of Births, Deaths and Marriages had acted unlawfully by refusing to issue them with marriage licences. [5] The case was unsuccessful and in 1997 an appeal was taken to the Court of Appeal. [6] The appeal was also unsuccessful. The case now sits before the United Nations Human Rights Committee, [7] and we await their decision on the core issues of whether or not denial of access to the Marriage Act constitutes discrimination against same-sex couples, and whether or not the Committee considers that same-sex couples should be able to marry under existing New Zealand legislation.

Meanwhile, the debate continues in New Zealand about what is the most appropriate form of partnership recognition? The issue is more complex than whether denial of access to the Marriage Act 1955 is lawful or unlawful. Questions arise about:

1. whether marriage is the most appropriate regime for same-sex couples (a question asked and debated by members of both the straight communities and the gay and lesbian communities);
2. whether, if a form of registered partnerships is offered, it should be open to same-sex couples and to different-sex couples;
3. whether, if a form of registered partnerships is offered, it should be open to same-sex couples only (because different-sex couples can get married);
4. whether same-sex couples should receive legal recognition at all.

Ultimately, the type of response that will crystallise will depend on the form of approach to the issues. Is this issue being examined from the point of view of the rights of same-sex couples? Is it being examined from the point of view of being a threat to the rights of different-sex couples? Are same-sex couples examining the issue as an objection to the concept of marriage as an ideal, or a reticence from marriage as an achievable goal? In other words, is the approach one of principle or of pragmatism?

1. "Is it a Matter of Principle?" - This section examines whether it is sufficient to seek to access to specific legal entitlements for same-sex couples (assuming that these are the same legal entitlements that different-sex couples access by marrying) on the basis that to do so achieves a "degree of equality".
2. "Is it a Matter of Pragmatism?" - This section examines whether or not it is sufficient to strive for legal recognition of same-sex and different-sex relationships (other than marriage) on the basis that we should aim for something which is achievable.
3. "Is there not a more Fundamental Principle?" - This section examines the notion that there is an important fundamental principle which underlies any consideration of accessing rights for gays and lesbians, whether as individuals or as couples.

1. Is it a Matter of Principle?

Is the approach one which is based in the question: How do we achieve access to the legal entitlements that are provided to those who marry, other than by marrying, on the sole basis that we do not wish to marry?

Although it can be conceded that this question is one stemming from a principled approach, I am not convinced that it reaches the fundamental principle. The principle from which this question flows is one which is founded in difference rather than equality.

Further questions may arise, such as: What is the basis for seeking a regime that is different from marriage rather than marriage itself? Is it that “marriage” is something that proponents of registered partnerships do not want, and if so, what is it about marriage that some same-sex couples do not want? Furthermore, what is it about marriage (under New Zealand law) that is different from registered partnerships?

Legally, marriage in New Zealand is a secular regime. The Marriage Act 1955 is civil legislation and has no religious aspect to it:

1. A marriage licence is issued by (or on behalf of) the Registrar of Marriages (an officer of the State), so long as he or she is satisfied that the marriage is not prohibited by the Marriage Act 1955. [8] The marriage celebrant, whether or not he or she is a minister of religion, has no role in the decision-making relating to the legal rights of a person to marry.
2. Marriage is a contract between two parties. The role of the marriage celebrant is to ensure that the legal formalities are carried out, and to validate the marriage on behalf of the State. Marriage celebrants do not need to be ministers of religion. In instances where ministers of religion are marriage celebrants, they will perform the role of blessing the marriage on behalf of the Church, additional to legal requirements. When a minister of religion who is a marriage celebrant uses the words “by the powers vested in me”, he or she is talking of (a) the power vested by the State under the Marriage Act 1955 to legally declare the marriage valid, and (b) the power vested by the Church to religiously bless the marriage. These two powers are distinct and separate, the latter not being a requirement of the law.
3. The marriage register is a document owned by the State, and is merely held in the meantime in the “lawful custody” of the celebrant. [9] There is no State requirement that the Church keep, for itself, a copy of the marriage details.
4. After the marriage ceremony, a marriage certificate is issued by the State as a legal record of the fact of marriage. A marriage certificate cannot be issued by a Church.
5. Marriages can take place, for example, outside in the garden at home, while parachuting from an aeroplane, or in the office of a Registrar of Marriages. We often hear of people getting married “at the registry office”. There is no requirement that a couple marry in any form of religious setting.

Does this not tell us that we already have registered partnerships in New Zealand? Where does this leave our principled approach on the basis of the question first asked above? If we are seeking to achieve access to the legal entitlements by way of a registered partnerships regime – we already have it.

A separate registered partnerships regime would provide an identical process for accessing identical entitlements by going through a different doorway and into a different room. Under this principle, we are saying that we do not wish to go into the first room. In actual fact, that decision would not be ours to make – we would still be denied access to that first room – we would still not be able to decide not to go in.

It appears that this “principled” approach is not based in any objection to the procedures (the formalities related to being able to enter the room), nor in any objection related to the rights to which access is being sought (the core elements contained in that room). It must therefore be in relation to what “marriage” means (the decorative aspects of that room).

But, within the legal framework, there is nothing to stop us from redecorating that room so that it becomes a room in which we feel comfortable:

1. If the objection to marriage is the religious trappings that are often associated with marriage, then it must be reiterated that marriages do not need to take place in a church or any other religious setting, nor with any religious content or other component.
2. If the objection to marriage is based in the nature of the institution itself, then once again, that can be redecorated in such a way that a same-sex couple may feel comfortable. Marriage, as an institution, does not force any particular characteristics onto the partners. We shape our relationships how we want – our relationships do not shape us. This negates any objections based in, for example, the perceived patriarchal nature of marriage, the financial dependency or interdependency. The core characteristic of marriage must remain the personal relationship between the couple.

Such redecoration does not change the legal elements of marriage – the procedures and entitlements – but merely the personal “extras” relating to what marriage means for the couple involved.

2. Is it a Matter of Pragmatism?

The other reasons for seeking a registered partnership regime (in preference to marriage) pivot around the fact that it is assumed that this will have a greater chance of success. The question that is asked here is: What is the regime that is most achievable? The basis of this approach is not based in principles associated with equality. Rather, this approach is based in political pragmatism. The question, if asked in full, becomes: How do we achieve access to the legal entitlements that are provided to those who marry, without upsetting those who oppose us?

There are several problems associated with this approach.

It may be true that, in the short term, a registered partnerships regime is a more easily achievable means of accessing, for same-sex couples, legal entitlements the same as, or similar to, those which are provided by marriage. The pragmatic approach says that, based on the assumption that there is insufficient support amongst Parliamentarians for a Bill to provide access for same-sex couples to marriage, we shift our goal-posts. [10] Because we do not want to upset those who do have access to the room that contains the entitlements that flow with marriage, we offer to voluntarily stay out of that room.

Why is there a belief that same-sex couples should not seek, or should not be given, access to marriage? Leaving aside the issues discussed in relation to the principled approach, why would we voluntarily choose to stay out of that room? Why would we choose to compromise our ultimate goals by choosing not to challenge the beliefs of those who oppose us? Why would we choose to condemn ourselves to inequality, at least for the foreseeable future?

Unfortunately, in one way or another, the response to this is sourced in homophobia.

The dictionary defines homophobia as “a hatred or fear of homosexuals”. [11] While this is a clear enough definition, I would suggest that this fear or hatred is based in an irrationality directed not actually towards homosexuals or homosexuality per se. It can be described more accurately as a fear of what the homophobe perceives homosexuals and homosexuality to be. In other words it can be re-characterised, in the main, as an irrational fear of the unknown. There are different “levels” of homophobia or, more correctly, homophobia manifests itself in a variety of ways and with different degrees of intensity, each of which will have a different impact on the issues facing gay and lesbian communities. [12]

1. The most extreme cases of homophobia are those which display an almost total rejection of homosexuality, while at the same time attempting to justify this rejection under the guise of “moral values”. However, when a person is speaking from a viewpoint of ignorance about what homosexuality, or gay or lesbian people and their values, it is difficult for their stance to be justified in logic. Homophobes who fall into this category tend to justify their homophobia on the basis that they “love the sinner, hate the sin”, an illustration of a lack of understanding of what it means for an individual to be gay or lesbian. This is the level of homophobia that leads to the “ministries” which encourage gays and lesbians to “change” their sexuality and “become” heterosexual. This degree of rejection of homosexuality as a valid sexuality dictates that gays and lesbians who may wish to enter the room which contains the entitlements provided by the law for those who marry, should not even make it onto the steps outside
2. The second level of homophobia fits into the “Don’t Ask! Don’t Tell!” category. Here, the homophobe is saying: “I do not care if someone is gay or lesbian, but I do not want to know”. They see gay and lesbian rights as issues which only affect gays and lesbians, and so long as gays and lesbians continue to live their lives behind closed doors and do not expect other members of society to take any responsibility for ensuring that their rights, as a minority group, are respected, all will be well.This group is probably happy to work with and socialise with gays and lesbians, so long as those gays and lesbians keep their sexuality hidden from view in all respects. This may mean that same-sex couples would be permitted to draw up ordinary contracts to secure property rights in relation to one another. It would not reach as far as rights relating to family or relationships however, as this would be akin to making some sort of public statement about the significance of the interpersonal relationship between the partners. This obviously rules out any chance of being permitted to enter the room which contains the entitlements provided to those who marry.
3. A third level of homophobia is that which acknowledges that homosexuals exist, and that gays and lesbians do form emotional and committed relationships with each other. However, the view is that these relationships are not as “real” as heterosexual relationships. Homophobes in this category are prepared to acknowledge that gays and lesbians are due some rights as a minority group, but that these rights should be limited.It is this group which feels comfortable with the idea that gays and lesbians should be satisfied with being recognised by the law as liable parents when a relationship has broken down, but not be permitted to adopt children while the relationship exists. Or, that we should be satisfied with receiving property protections when our relationships come to an end, but not within the same legislation that applies to married couples. As Prime Minister in the then Government, Mrs Shipley attended the HERO festival in Auckland in 1999 and talked of celebrating diversity within New Zealand society. [13] She subsequently returned to Wellington and, while conceding that gays and lesbians were due some property rights, confirmed that her Government would not consider including same-sex couples in either the matrimonial property amendments or the de facto property legislation that were proposed at that time. Same-sex couples can approach the door to the room which contains the entitlements of marriage, but the door is guarded and they will be re-directed to the room next door.
4. Perhaps one of the most understandable, and yet most disappointing, forms of homophobia is that which is internalised by gays and lesbians ourselves. I do not believe that any gay or lesbian person is free from at least some degree of internalised homophobia which builds within us as a result of the negativity from others towards us. At any level, when a person growing up hears negative comments or snide remarks about homosexuality, when the person knows consciously or subconsciously that those comments are about themselves, they cannot help but raise their defences to protect themselves against becoming vulnerable to such attacks.Leaving aside the issues discussed above (in relation to a “principled” approach), it is this internalised homophobia which acts to stop same-sex couples from demanding access, on exactly the same terms, to the same rights that are enjoyed by different-sex couples. Internalised homophobia (once again, leaving aside the issues discussed above in relation to a “principled” approach) has the effect of stopping us from seeking to enter the same room containing the entitlements of marriage that heterosexuals wanting to get married will enter. We voluntarily seek to enter the room next door.

Unfortunately, homophobia builds on homophobia, and the message that is being conveyed by the pragmatic approach is that we, as gays and lesbians, are okay about compromise. Through this, I believe, we are endangering members of our own communities. We are assisting in perpetuating the less-than-equal status of gays and lesbians in society, and in doing so are giving permission to others to continue to see us in that light. While immediate gains may be made, the wider ramifications of inequality are not acceptable.

3. Is there not a more Fundamental Principle?

It is my contention that neither the “principled” nor the “pragmatic” approaches as they are outlined above, are sufficient. In order to retain full integrity in relation to the aims and aspirations of gays and lesbians as full citizens of New Zealand, we must adhere to the notion of an all-embracing, fundamental principle. This is not responded to by the above.

In New Zealand gays and lesbians are told by the law that the fundamental entitlement, underlying all specific entitlements which can be accessed through individual statutes, is that of equality before the law.

My argument is that acknowledgement of, and commitment to, this fundamental principle actually dictates the goal, and for me this then becomes non-negotiable. Based on this approach, we are not principally seeking recognition of our relationships under the law. If we are adhering to a strictly principled approach, what we are seeking is equality, equal citizenship, and equal participation in New Zealand society.

It is also my argument that we have the ideal legislative climate to enable a realistic commitment to that fundamental principle:

1. The Human Rights Act 1993 informs us that we are free from discrimination on the grounds of sexual orientation, sex (gender), marital status and family status. [14] This is not reflected in our access to various statutes (or, more correctly, our lack of access). Admittedly, the Human Rights Act, in the main, applies to private sector behaviours as opposed to Government actions. But, there is supposedly to be no discrimination in areas employment, access to public places, the provision of goods and services, accommodation, and education, [15] In some of these areas Government is performing the same function as the private sector and is therefore subject to the Act.
2. The New Zealand Bill of Rights Act 1990 applies to all actions by, or on behalf of, the Government. Under this Act there is to be no discrimination against any person on any of the same grounds as outlined in the Human Rights Act. There may be different treatment of different persons or groups of persons, but this must be justified by reference to some objective standard in order for that different treatment to be lawful, and therefore not constitute discrimination. [16] Furthermore, the Bill of Rights Act states that it is: “An Act (a) to affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and (b) to affirm New Zealand's commitment to the International Covenant on Civil and Political Rights”. [17]
3. New Zealand is also signatory to the International Covenant on Civil and Political Rights. This Covenant, above all else, declares that everyone has the right to “equal treatment under the law”, and the right to the “full and equal protection of the law”. Parliament is charged with expressing the voice of the people, and it must therefore be assumed that, when Parliament consented to the accession to this Covenant (whether or not one agrees with the particular procedures associated with accession to international treaties, they are carried out on behalf of Parliament – not Government) it agreed to fulfil its obligations under that Treaty. These obligations further require Parliament to actively promote the passing of non-discriminatory legislation. [18] It can be seen therefore, that if Government fails to put forward, and Parliament fails to consider, proposals for legislation that are non-discriminatory, then both have failed in their self-accepted responsibilities. It is a constitutional truism that Parliament is supreme, but this does not rule out the necessity for Parliament to conscientiously consider the issues – and to reject equal treatment for same-sex couples only on the basis that there is a reasonable, lawful, and objectively justifiable reason for them to do so. [19]

New Zealand has made much of the fact that it is an active and positive player in the United Nations and in international human rights. When the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations, New Zealand was one of the many countries which voted in favour of its adoption. [20] New Zealand signed and ratified the International Covenant on Civil and Political Rights (ICCPR). [21] To cite a variety of phrases from just two of the many international human rights documents to which New Zealand has made an obvious and internationally public commitment, we, as gays and lesbians, are seeking:

1. the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family; [22]
2. the promotion of respect for these human rights and fundamental freedoms, and by progressive measures, their universal and effective recognition and observance; [23]
3. equality before the law and equal protection of the law without any discrimination; [24] and
4. observance by Parliament and Government of the obligation to take the necessary steps to adopt such laws or other measures as may be necessary to give effect to the fights and fundamental freedoms as recognised in the ICCPR. [25]

A fundamentally principled approach, based in our domestic and international human rights law fabric, dictates that the issue of what type of relationship recognition we must seek becomes a non-issue. Any notion that we can approach the room which holds the entitlements that flow from marriage and be denied entry, or be re-directed into another room (whether or not others have the choice to enter that same other room) is untenable. Any such scenario can not satisfy the fundamental principle of equality before the law. It does not satisfy New Zealand's declared standards in domestic human rights law, nor does it satisfy any of the standards that New Zealand has accepted under its agreement to international human rights treaties.

To accept anything less, is to accept for ourselves, and convey the message to others, that we as individual gays and lesbians, and as couples in same-sex relationships, are not worthy of full citizenship.

Comment

There may be gays and lesbians in New Zealand who do not wish to marry. That is fine. No one is suggesting that any couple should be forced into marriage as the only method for recognition of their relationships.

Conversely, however, some same-sex couples believe in the right to marry and would like to get married. Why should they not do so? In my mind, New Zealand has in place a bundle of human rights laws which suggest that there should be no problem for this to happen. This is especially so, when marriage under New Zealand law is, in fact, no more than a form of civil registration (which actually makes the notion of registered partnerships superfluous).

Essentially, registration of partnerships has been seen as a means of providing some (or most) of the legal entitlements that marriage provides, without actually providing marriage. This works for different-sex couples. Registered partnerships would give them the ability to remain as de facto, or to choose from the alternatives of marriage or registration. But, this would not be the case for same-sex couples. If registration (and not marriage) were offered for same-sex couples, same-sex couples would be able to register, but would still not be offered the choice of marriage. If same-sex couples cannot choose to marry, nor can they choose not to marry. Same-sex couples would be unable to choose not to marry because marriage remains reserved for non-gay and non-lesbian couples, and denied to same-sex couples. Same-sex couples can still not choose registered partnerships as an alternative to marriage. Consequently, same-sex couples are still being discriminated against when it comes to freedom of choice (a freedom described as fundamental by Justice Thomas of the New Zealand Court of Appeal). [26]

This may not seem important to those who do not wish to marry. But it is essentially important for those who do wish to marry, and for those of us who seek, as our bottom line, the right to equal treatment under the law. Therefore, discrimination against gays and lesbians would exist on the basis of a lack of freedom of choice.

This “best of” scenario is based on the assumption that a registered partnership regime will provide all of the same entitlements that marriage currently provides – and I am not yet convinced that it will. If registered partnerships do not provide all the same entitlements that marriage provides, then the discrimination is compounded. A difference in entitlements will mean that same-sex couples will experience discrimination relating to freedom of choice, and discrimination relating to the nature, and extent, of entitlements.

Even if registered partnerships do provide all the same entitlements that marriage provides, they will not – and can not – provide the same status. Marriage is not only about the provision of access to legal entitlements. One of the descriptors that has been used in relation to the intangible elements of marriage is that of the “meaning-making capacity of marriage”. [27] This is a significantly important element of marriage not to be overlooked. A simple means of explaining this is to use the oft cited example of the song from “My Fair Lady”, in which certain words have been replaced so that the phrase “I’m getting married in the morning” becomes “I’m getting registered in the morning”. Somehow, it does not have the same ring – the same symbolic value.

This will mean that same-sex couples will experience discrimination relating to freedom of choice, and discrimination relating to the nature, and extent, of entitlements and discrimination relating to marital status.

There is no doubt that to strive for registered partnerships rather than marriage is to say (to a greater or lesser extent) that we are happy to be treated unequally under the law. It says that we are happy, as gays and lesbians, to accept the homophobia of non-gay and non-lesbian members of society. Worse than this, it says that we are happy to accept the internalised homophobia amongst ourselves as gay and lesbian members of society.

The politicians (the Leader of the Opposition and others) and the religious leaders (the leader of the Christian Heritage Party and others) will be expecting a battle on the issue of the legal recognition of same-sex relationships – a battle in which they know their own arguments contravene our human rights laws. They will be breathing a big, collective sigh of relief with the revelation that gays and lesbians are seeking registered partnerships, and they do not have to let their prejudices show. But … in time to come, when the same-sex marriage issue arises again, they will be saying: “But we gave you registered partnerships – what more do you want?”.

Much law will, at least to some extent, reflect social attitudes. On the other hand, progressive law can also shape social attitudes – and so can regressive law. There is always a danger with a registered partnership regime, that the message to society will be that same-sex relationships are not the same as, not as valid as, not as valuable as, different-sex relationships. If we are happy to convey this message, we are also saying that we are happy for human rights legislation in New Zealand to be ignored. If we say that it is all right for human rights legislation in New Zealand to be ignored in relation to the recognition of our relationships, we are exposing ourselves to the danger that it is acceptable for human rights legislation to be ignored in other areas as well.

Conclusion

I do not believe that we can approach this issue from anything less than a fundamentally principled viewpoint. As gay and lesbian activists, we are striving to provide a better New Zealand for all gays and lesbians. To trade off the opportunity to adhere to our principles in return for pragmatic gain does not convey a consistent message to society. Compromise will provide a more secure future neither for ourselves nor for those younger gays and lesbians who will follow us.

“Should we speak loudly and defiantly or take what we can get when we can get it? … The movement, lacking a strong and clear voice demanding equal rights, effectively went missing in California’s fight over an anti-gay marriage initiative. The federal Defense of Marriage Act passed Congress and gained a presidential signature from a sometime supporter of gay rights claiming he did the politically expedient thing. In response, the community expressed its (mild) disappointment. Meanwhile, a federal employment protection act and a hate crimes bill languished in Congress for lack of support. … If we fail to gain full equality with the rest of the nation, does applying the separate and unequal balm … to our wounds salve further injustice?”. [28]
We must not be prepared to contemplate gaining access to the entitlements which flow from registered partnerships (even if they are the same as those which flow from marriage) unless we can freely choose registration as an alternative to marriage. At that point, we will decide which room we are going to enter, and then we will set about decorating it to make it truly ours.

“Progress is not made by moving cautiously step by step, but by asking for the moon …”. [29]

© Nigel Christie: 25 May 2001

Footnotes

1. I have used the term “registered partnerships” throughout as a generic term covering both registered partnerships and civil unions.
2. Hungary, France, Belgium, Catalonia (Spain), Aragon (Spain), Vermont (USA) and The Netherlands (in addition to their recent inclusion under the existing marriage legislation).
3. Denmark, Norway, Sweden, Iceland, Greenland
4. Finland, the Czech Republic, Nova Scotia (Canada), Hawai’i (USA), Washington State (USA), California (USA), Rhode Island (USA), Brazil, and Latvia.
5. Quilter v Attorney-General [1997] 14 FRNZ 430.
6. Quilter v Attorney-General [1998] 1 NZLR 523.
7. Joslin v New Zealand, Communication No. 902/1999.
8. See the Marriage Act 1955, sections 24 and 28.
9. See the Marriage Act 1955, section 35.
10. Remembering that Members of Parliament are elected to represent their constituents. This implies that there is an assumption that the general public does not support the concept of same-sex marriage. This is an untested assumption (leaving aside the debate about whether this issue is one of minority rights which Parliament is charged with protecting, rather than a matter of popular vote).
11. The Concise Oxford Dictionary, Clarendon Press, Oxford (1991), 565.
12. While I consider that there is a continuum of types of behaviour, I have categorised some examples here for purposes of clarity.
13. Brockett, Matthew, “Shipley Supports Gay Rights – Except Marriage” in The Dominion, 16 February 1999.
14. Human Rights Act 1993, section 21.
15. Human Rights Act 1993, section 22 (employment), section 44 (access to public places), section 44 (provision of goods and services), section 53 (accommodation), and section 57 (education).
16. New Zealand Bill of Rights Act 1990, section 5: “Justified limitations – Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
17. New Zealand Bill of Rights Act 1990, Title.
18. See also footnotes 21 to 24.
19. New Zealand Bill of Rights Act 1990, section 5: “… subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”; and section 7: “… the Attorney-General shall … bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights”.
20. Adopted on 10 December 1948.
21. Signed on 12 November 1968, ratified on 28 December 1978, and it entered into force on 28 March 1979.
22. UDHR, Preamble.
23. UDHR, Preamble.
24. UDHR, Article 7, and ICCPR, Article 26.
25. ICCPR, Article 2 and Article 3.
26. Quilter v Attorney-General [1998] 1 NZLR 523.
27. Will Rountree (University of California, Berkeley) commenting by e-mail on the Vermont same-sex marriage judgment, 4 January 2000.
28. Gierach, Ryan “Domestic Partnership, Boon or Bane: Momma Told Me To Watch Out What I Ask For Because I Might Get It” in Genre, April 2001, 56, 59.
29. Clint Trout of Project Free in Southern California, cited in Gierach, Ryan “Domestic Partnership, Boon or Bane: Momma Told Me To Watch Out What I Ask For Because I Might Get It” in Genre, April 2001, 56, 59.

Almost exactly 12 months ago in a Parliamentary debate about the Property (Relationships) Bill, the Leader of the Opposition, Rt Hon Jenny Shipley stated that people who marry “make a commitment, and it is an obvious commitment – a higher level of commitment than people who enter other relationships” (Hansard Parliamentary Debates, 4 May 2000, page 1929)

After watching the programme on Hudson and Halls (TV1, 7 May 2001), I wonder if Mrs Shipley, and others similarly, can reasonably continue to make such comments.

For me, there were two fundamental issues which came out of the story of this.

As the dynamic duo bounced their repartee off one another, they often rated the highest television audience levels. Around New Zealand, tens of thousands of people organised their evenings so that, at the appropriate time, they would be sitting in their living rooms in front of the TV. Then they participated in the banter, the comedy, the cooking, and the sheer entertainment of these two guys. Amongst these tens of thousands of people were the elderly (my grandparents) and the young (myself, brother and sisters, and friends), housewives (my mother) and farmers (my father), schoolteachers (my aunt).

The gender, the sexuality, the age, the occupation of the viewer did not matter. Whoever the viewer was, they were being entertained.

I was a teenager, and I “knew” that Hudson and Halls were a couple – but I never talked about it with my family. Nor did anyone else talk about it. It was “known”, but it was not known. Apparently, even for those who attended dinner parties at the home of Hudson and Halls, this was a never talked about subject – it was “known” but not known.

Furthermore, if anyone had formally announced that Hudson and Halls were both homosexual men, and were living together in a relationship, it could possibly have meant the end of their popularity. New Zealanders generally were comfortable with the fact that they did not know. The ability to make invisible this particular element of what was before their eyes, enabled them to concentrate on the humour, the cooking, the entertainment.

On the other hand, however, this does not mean that Hudson and Halls were not living together as a couple. It does not mean that their friends and families did not “know” that they were living together as a couple. This does not mean that those who knew them well did not “know” the level of their commitment – their loving and sharing, their bickering and caring.

Even though many New Zealanders chose to ignore this part of what was before us – it was more “comfortable” that way. At the same time, however, to say that the relationship that flourished before our eyes was any less committed than that of Mum and Dad, or Aunty and Uncle, or Mr and Mrs Kiwi down the road, is absolutely unjustifiable. This was a relationship where two individuals had come together into a relationship “in the nature of marriage”. They shared a life and they shared dreams. They planned together to bring many of their dreams into reality. In many respects they were more married than many married people I know.

So, are there are still those in our society who continue to say that couples in relationships such as this should not be permitted to marry? Do they still say that marriage connotes “a higher level of commitment”? Do they still say that it is okay to discriminate against same-sex couples merely because the partners to that relationship are of the same gender? Do they continue to say that human rights laws in New Zealand are not worthy of being upheld?

Under New Zealand law, valid different treatment of same-sex couples depends on being able to justify that different treatment objectively. If this cannot be done, then that different treatment is no more than unlawful discrimination.

On what grounds is marriage denied to same-sex couples? What are the objective grounds that are used to justify the exclusion of same-sex couples from recognising their commitment to each other in the same way that different-sex couples do? What are the objective grounds that are used to justify denying the families, friends and colleagues of same-sex couples from being able to demonstrate the support for a same-sex couple’s commitment to each other in the same way that they do for different-sex couples? What are the objective grounds that are used to justify the exclusion of same-sex couples from the legal protections, benefits and obligations that different-sex couples automatically access when they get married?

There are no such objective grounds.

The attempts at justification are all based in how “uncomfortable” those who express such views actually are with the concept of recognising same-sex couples in the same way that we recognise different-sex couples.

If same-sex couples are given a status, they are no longer invisible.

If same-sex couples are no longer invisible, then those people who are uncomfortable will have to face up to, and deal with, their self-generated fears.

This is the challenge to Mrs Shipley, and many others. The onus is not on same-sex couples to prove their validity and value – the onus is on society at large to prove their lack of validity and value. The challenge for the detractors is for them to move out of their comfort zone. Discrimination cannot be justified on the basis of unreasoned discomfort.

© Nigel Christie: 8 May 2001

I would be interested in hearing any views on the legal recognition of same-sex relationships. The issue has been debated by gays and lesbians over a considerable period of time, both here and overseas.

I believe that we, as same-sex couples, should be entitled to obtain legal and social recognition of our relationships on precisely the same terms as different-sex couples. In essence, I am not suggesting that we are seeking the right to marry, but rather, that we have the right to equal treatment under the law. The issue therefore becomes one of the right to freedom of choice – the choice of whether to marry or not.

There has also been a great deal of discussion about registered partnerships as an alternative form of recognition. However, in no instance where registered partnerships have been offered do they provide the same legal protections, rights and obligations as does marriage. To put in place an alternative form of legal recognition for same-sex couples, is to tell us that our relationships do not, and should not, receive the same level of legal and social recognition that different-sex couples can choose to receive.

I do not find it acceptable that a message should be conveyed that same-sex relationships are not as valid or as valuable as different-sex relationships. Nor do I find it acceptable that same-sex relationships are relegated to a secondary form of recognition when our Parliament (expressing the will of the people) has already stated that there will be no discrimination on the basis of sexual orientation, sex (gender), marital status, and family status. Parliament has spoken on these issues by:

1. enacting the New Zealand Bill of Rights Act 1990; and
2. enacting the Human Rights Act 1993; and
3. signing up to the International Covenant on Civil and Political Rights (amongst other international human rights treaties).

It is my strong belief that the right to equal treatment already exists for gays and lesbians in New Zealand law. All that is required of Parliament is to remove the barriers which deny us access to those rights.

© Nigel Christie: May 2001

LeGaLE, PO Box 5235, Wellington, New Zealand