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Louisa Wall's submission

Posted in: Features
By Louisa Wall - 7th November 2012

Louisa Wall has got the ball rolling by making her own submission on her bill to give New Zealand marriage equality. You can read what she’s had to say, in full, here:

TO: Chair and Members
Government Administration Select Committee
Parliament Buildings


Basis of the Bill

1. This Bill has a simple objective - to achieve marriage equality in Aotearoa New Zealand. First, it recognises that marriage is a social and civil institution as reflected in Article 16 of the United Nations Declaration of Human Rights (UNDHR). Secondly, it confirms that the State's role in the institution of marriage is that it issues licences to free and consenting couples that then allows them to marry and register their marriage. Who, how and where consenting couples marry is a private matter for all parties concerned including Celebrants, individuals or religious organisations, as there is no obligation on them to marry consenting adults based on the State issuing a licence to marry.

2. In that simple step of issuing a licence to marry, all citizens who are eligible are then able to marry the partner of their choice and are accorded equal status under the law. That is what we have signed up to in terms of the UNDHR and the International Covenant on Civil and Political Rights. That is what is recognised in our domestic legislation - in the New Zealand Bill of Rights Act 1990 (BORA 1990) and the Human Rights Act 1993 (HRA 1993).

Issues that have been raised

3. I would like to deal with a number of issues that have been raised in the public domain during the discussion about marriage equality.

4. At the outset, much of the opposition has been motivated by a basic premise that some people consider homosexuality is unacceptable or a sin. There have been attempts to revisit issues that have already been determined. In other words some opponents need to be honest and declare that what they truly seek is to repeal the Homosexual Law Reform Act 1986. This is evidenced by the number of vocal opponents who argue from a first principle position of homosexuality being a sin and homosexuals being sinners. It is also evidenced by their pragmatism in changing from a position of opposition to the Civil Union Act 2004 to one of expressing support for that Act in order to oppose this Bill. That position promotes the view that all homosexual New Zealanders are different and should be satisfied with the created institution of Civil Union.

5. The decriminalisation of homosexuality between men in 1986 and the extension of the grounds of unlawful discrimination to sexual orientation in 1993 are democratically agreed and are necessary steps that have evolved in New Zealand from the original Universal Declaration of Human Rights in 1948. That evolving international position is reflected in the report by the United Nations Human Rights Office of the High Commissioner, Navi Pillay, titled "Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law" released in September 2012.

6. This Bill does not redefine marriage. The reason the Bill is simple is that our Marriage Act has never defined marriage. Unlike other countries and some states there is no definition of marriage and no statutory limitation on marriage being between a man and a woman.

7. A number of people have raised the fact that non-heterosexual couples should be satisfied with civil unions and not be able to enter the institution of marriage because there is the choice to formalise relationships with civil unions. There is no logical or rational base on which a heterosexual couple should be able to choose to commit to each other by way of civil union or marriage and non-heterosexual couples are unable to exercise that same choice.

8. There have been those who have tried to portray this Amendment Bill as importing a requirement that Churches will be forced to marry any couple issued with a licence. That is plainly wrong. It has never been the situation. Ministers, who as Celebrants, can only provide access to the ceremonial and sacramental space of a Church, have always been able to refuse to officiate for whatever reason - examples from the past show that can be on the basis of one of the parties religious beliefs or their race. Section 29 of the Marriage Act 1955 remains unchanged and Celebrants (which includes Ministers) are authorised but not obliged to marry a couple who have obtained a licence from the State. Further, the BORA 1990 identifies freedom of religion in section 13 and that overrides any suggestion of unlawful discrimination being claimed under the HRA 1993 as section 6 of the BORA 1990 states clearly that the rights and freedoms in BORA 1990 are preferred. The Human Rights Commission has confirmed that position and suggestions otherwise are scaremongering and deliberately misleading propaganda.

9. The campaign in opposition has been to issue press releases on a regular basis that contain mistruths and misleading information that is accepted at face value by a number of opponents and likely opposition submitters to this Committee. One recent example was to the effect that I had acknowledged that this Bill would force Churches to perform same-sex marriages in Church halls. The current law prohibits any body or organisation from refusing to offer goods or services to the public on the basis of the grounds set out in s.21 of the HRA 1993. Those grounds are sex, race, religious or political belief, ethnic or national origin, disability or sexual orientation. Any Church that hires out its hall to the public cannot refuse to do so on the basis of any of those grounds. That is the law now and my Bill does not change that. A Church could not refuse to rent out its hall to a gay couple wishing to have a civil union or to a lesbian wanting to hold her 21st there. To suggest this Bill changes that is disingenuous and is a desperate and deliberate attempt to provoke a response based on misinformation.

10. Those opposed to this Bill have incorrectly suggested that they cannot hold a view that marriage equality is wrong because they would be in breach of section 56 of the Marriage Act 1955. Section 56 of that Bill makes it an offence for any person to declare that a particular and specific couple who are legally married are not truly and sufficiently married or that their children are illegitimate. It is not an issue about the 3

expression of various religious views about marriage. These general views are able to be publicly communicated within a sermon for example. But one would hope that no person (and particularly a Minister) would declare that a specific couple was not legally married when that was not the case. To say that would not be true. So, there is no limit on the ability of Ministers to express generic views about matters concerning non-heterosexual marriages or about the desirability or otherwise of interfaith or second or subsequent marriages. Confirmation of that is found in the origins of section 56 of the Marriage Act 1955 where it was introduced to stop moves by the Catholic Church to declare that an individual Catholic who had married in a Church other than a Catholic Church was not legally married and was living in sin and any children of the union were illegitimate. It is a provision that is directed to an individual couple and not general religious philosophy. And today such generic statements have greater protection with the recognition of religious freedom in section 13 of the BORA 1990.

11. There are some who have expressed the view that civil unions should suffice as an appropriate recognition of same-sex relationships or other non-heterosexual relationships. Civil unions are available as an option to heterosexual couples and that would have been as a result of the fact that not applying the Civil Union Act 2004 to all couples would have been discriminatory and would not have complied with the BORA 1990. This Bill will result in all couples, regardless of sex, sexual orientation or gender identity having the same options to recognise their relationship - civil union, de-facto or marriage.

12. Adoption has been raised as an objection to this Bill - either on the basis that marriage equality is seen as a step towards adoption equality or that adoption equality is acceptable but should be done without marriage equality. The reality is that there are a myriad of issues involved in the reform of our out-dated adoption laws. Currently however an individual homosexual is eligible for consideration as an adoptive parent. What is not fair is that a homosexual couple cannot adopt jointly purely because they are not married and a joint adoption application can only be made by "spouses" - a state only defined and conferred by marriage. This anomaly runs contrary to the intention of creating strong and stable families. It is a matter that has been the subject of Family Court directions and decisions, one example being the comments of Judge Burns where he stated in respect of the adoption of a child by one partner of a same-sex couple:

"[5] Subsequently there was consent given by both parents to the applicant adopting the child. Normally of course the application for adoption would be brought by both of them, being effectively the principal caregivers for the child. The difficulty is that the Adoption Act 1955 does not allow for any applicants to be on a joint basis unless they are married. It has not been amended to bring it in accordance with current society, although I am aware that the Adoption Act is currently for consideration in terms of major review and amendment. That has not occurred as yet.

[6] A decision was made for N to be the sole applicant but I think it is clear and understood that it is anticipated that the child would be brought up by both of them but an adoption order is only sought by N.

13. What this Bill will mean is that making marriage available to all couples who are able to marry, regardless of sex, sexual orientation or gender identity, will define them as spouses and will not leave the ability to make a joint application under the current Adoption Act 1955 as a right or privilege of heterosexual couples only. This Bill will result in a less discriminatory system than the one we have at present which will hopefully be addressed once a fuller reform of the Adoption Act 1955 is undertaken including adoption rights of other formalised relationships, such as civil union and long-term de-facto couples.

14. With some reluctance I will address the ridiculous "slippery slope" argument that has been raised. This Bill is about eliminating discrimination and inequality in the civil and social institution of marriage. Polygamy, bigamy, bestiality and incest are criminal offences and will remain so. It is insulting for people to even raise such issues within the context of a discussion about marriage equality. Such arguments are a reflection of the true attitudes of those proposing them as it reflects their attitude toward those who are currently discriminated against, homosexual or non-heterosexual New Zealanders, by the current administration of our Marriage Act 1955. That is a discussion we have already had - homosexual New Zealanders are able to live free, open and honest lives and this reality underpins my Bill. Marriage is the fundamental unit in society as a social and civil institution. It is one that many couples contemplate, the ideal or fairy tale to find one's life partner and it is the choice to enter that institution that my Bill seeks.

Consequential Repeals and Amendments

15. While not included in the Bill as currently drafted, I do wish to highlight further to my introductory speech, the need to make it clear that section 30(2) of the Births, Deaths, Marriages, and Relationships Registration Act 1995 is to be repealed. This was a matter raised when the Bill was drawn from the ballot and it is important it is addressed through this process. Currently section 30 of the Births, Deaths, Marriages, and Relationships Registration Act 1995 reads:

30 Registrar-General may add information to registration of birth

(1) Subject to subsection (2), where there is deposited with the Registrar-General a declaration issued under section 28 or section 29 that relates to a person whose birth has been registered or is later registered, the Registrar-General shall, on payment of the prescribed fee (if any), include in the information relating to the birth recorded under this Act or a former Act information that the person is a person of the nominated sex.

(2) The Registrar-General shall not at any time act under subsection (1) if the person concerned is then lawfully married to a person of the nominated sex."

16. Such a repeal would reflect that this Bill provides that marriage is not an institution that is limited to heterosexual couples and therefore when the Family Court is called upon to make declarations as to sex of an individual it would no longer be appropriate for the Registrar-General to not record a person's nominated sex merely because the person is lawfully married to a person of the nominated sex. With the passing of this Bill the sex, sexual orientation or gender identity of parties to a marriage is irrelevant to the legitimacy of the marriage. In my view the Bill should include specific reference to the repeal of section 30(2) of this Act as it is prescribed in very narrow terms and it would be unfair for the burden of effecting recognition of the obvious outcome of the Bill to fall on those who would be seeking to have their nominated sex recorded by the Registrar-General under the 1995 Act.

17. There may also be merit in the Select Committee considering an amendment to section 2 of the Adoption Act 1955. The definition of "adoptive parent" reflects section 3(2) of that Act which provides that "[a]n adoption order may be made on the application of 2 spouses jointly in respect of a child.". To be clear the definition of "adoptive parent" could be amended to include the words "or spouses" after "husband and wife".

18. I would also like to comment on the issue of transfer of civil unions to marriage. Currently sections 17 and 18 of the Civil Union Act 2004 allow the form of a relationship to be changed by having the new form of relationship solemnised without having to first dissolve the current relationship. Section 18(3) of the Civil Union Act 2004 provides that the solemnisation of the marriage of two people who are in a civil union with each other changes the relationship from a civil union into a marriage, without altering the duration of the relationship.

19. Some couples have chosen to marry overseas and with the passing of this Bill they may wish to have the validity of that marriage recognised in relation to New Zealand law. An application for a declaration to that effect can be made under section 27 of the Family Proceedings Act 1980 and I would hope that the Family Court would, in the exercise of its discretion, recognise the purpose of this Bill and consider favourably the application of any couple that has married overseas at a time when we did not have equality and non-discrimination in respect of the exercise of the Marriage Act.

Concluding Comments

20. This Bill does not give any group of people greater rights. All it seeks to do is to provide the same rights, responsibilities and privileges of marriage to two people who choose this form of expression of their relationship. This is a concept well understood by younger people - those who are the future of our country and who this Bill is particularly relevant to, given the choices they will make as they progress through their lives in forming and founding their own families. Student referenda conducted in 2012 at Otago and Victoria Universities resulted in 84% support for marriage equality. It is a generational issue and that evolution has been reflected in the number of countries that have achieved some form of recognition of non-heterosexual relationships and have then moved to marriage equality. The Netherlands, Norway, Belgium, Denmark and Sweden are all examples of that development.

21. The United Nations High Commissioner for Human Rights has said that extending the same rights to lesbian, gay, bisexual and transgender persons as those enjoyed by everyone else will result in the principles of equality and non-discrimination becoming a reality for millions of LGBT people around the world.

22. Marriage equality is a step along that path. One that will send a strong message that as a society we value all people, regardless of sex, sexual orientation or gender identity and that we pay more than lip service to the United Nations Declaration of Human Rights that all people are born free and equal in dignity and rights. A number of vocal opponents have clearly articulated the message that if you are homosexual or transgender you are not entitled to the same rights that they have. Such an attitude is bigoted and discriminatory and just plain unfair. Imagine how a homosexual or transgender person feels - being told that they are not entitled to all that is available to other people, that they do not deserve to have the same rights. For many coping with their sexuality and the challenges that brings is difficult enough - without the overt prejudice that is clearly directed towards them often in the name of religion or culture. Whether you are young and starting out on your life's journey or have been dealing with this prejudice all your life, this rejection of such an integral part of yourself is unacceptable and intolerable and can be destructive.

23. Finally, one's sexual self-determination should not limit in any form one's rights of citizenship. The basic principle of citizenship is that it is a right of descent and birth and in a modern democracy it is about the relationship people have with the land they call home. To limit rights of citizenship based on non-heterosexuality status contradicts the fundamental rights of citizenship conferred by descent, dwelling and birth and in a modern democratic society all citizens must be entitled to all rights extended by the State. To perpetuate inequality and discrimination once it is exposed is unjustified and irrational. If we do not act, we condone it and in Aotearoa New Zealand it is time for appropriate legislative action to realise marriage equality for all of our citizens.

Louisa Wall - 7th November 2012

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