Waikato Times

3 January 1998

TIMES FORUM: THE INVISIBLE RELATIONSHIP IN SOCIETY

The Government has shown it intends to retain the ability to discriminate against same-sex relationships, writes Nigel Christie in Saturday Soapbox.

On 17 December 1997, the Court of Appeal handed down its judgment dismissing a claim by three lesbian couples seeking the right to marry under the existing Marriage Act.

The case was based on the anti-discrimination provisions of the New Zealand Bill of Rights Act 1990 (imported from the Human Rights Act 1993). The appellants argued that these provisions, alongside the fact that the Marriage Act 1955 does not expressly state that the parties to a marriage must be a man and a women, leave it open for marriage licences to be issued to same-sex couples.

The so-called "traditional" New Zealand definition of marriage comes not from the Marriage Act, but from an 1864 case in England. Lord Penzance stated marriage was the "voluntary union of one man and one woman to the exclusion of all others for life".

This common-law definition, and the argument that Parliament did not intend the Marriage Act to include couples other than a man and a woman, is used to deny same-sex couples the right to marry.

So, why did same-sex couples attempt to refute this reasoning and seek to gain legal recognition of their relationships by gaining access to the Marriage Act?

The New Zealand parliamentary and legal systems have progressed substantially since 1864 and Parliament has spoken in favour of same-sex couples since 1955 by decriminalising homosexuality in 1986, through the anti-discrimination provisions of the Human Rights Act and the Bill of Rights Act, and by including same sex couples living in a relationship "in the nature of marriage" in provisions of the Domestic Violence Act.

The Crown has also signed and ratified a raft of international human rights treaties under which it accepts an obligation to work towards eliminating discrimination against groups in society so all are treated equally under the law.

There are many areas of the law, however, where same-sex partners are not recognised.

• Accident compensation legislation defines spouse as a person of the opposite gender.
• If a gay or lesbian person is incapacitated in hospital, his or her partner will not, as of right, have any say in the medical treatment of that person.
• Same-sex couples cannot draw up cohabitation agreements under the Property Law Act.
• A will written by a gay or lesbian person leaving property to their same-sex partner may be challenged successfully by family members.
• Where a same-sex couple have raised children, the non-biological "parent" has no legal say in decisions relating to those children, whereas an estranged (heterosexual) parent may legally step in and make such decisions.
• There are other examples in areas such as immigration, student allowances, relationship property, but to name a few, where the law is discriminatory and treats same-sex partners as legal strangers, even though they may be in a long-term caring relationship.

The Government, through recent moves to exempt itself permanently from the provisions of the Human Rights Act 1993, has shown it intends to retain the ability to discriminate through legislation.

Same-sex marriage is not a threat to society but a means of granting legal recognition and protections to existing relationships. Same-sex relationships are valuable relationships and should not be treated as any less vital than relationships being held out as superior.

Justice Thomas of the Court of Appeal stated that marriage is a fundamental civil right which is being denied to same-sex couples.

"In a real sense, gays and lesbians are effectively excluded from full membership. of society," he said.

Gays and lesbians are seeking to be recognised not only for fulfilling obligations (such as paying taxes and paying rates), but also as total participants in society enjoying rights and privileges heterosexuals take for granted.

LeGaLE, PO Box 5235, Wellington, New Zealand