In the preamble to the Marriage (Definition of Marriage) Amendment Bill, the drafters have explained their reason for the Bill:
Marriage, as a social institution, is a fundamental human right and limiting that human right to 1 group in society only does not allow for equality.
The term ‘institution’ in this context means ‘a custom, practice, or behaviour pattern of importance in the life of a community or culture’. A social institution, then, is a custom, practice, or behaviour pattern of importance to society. Yes, I’d have to agree that marriage is a social institution.
Marriage, the Bill says, is a fundamental human right. The Bill refers, I assume, to Article 16 of the Universal Declaration of Human Rights:
- (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
- (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
- (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
The statement as it stands has a lot of qualifiers. Men and women. Of full age. Free and full consent. The right is not an absolute. Come to think of it, that applies in general. Rights are always limited by the interests and rights of others. You have the right to swing your arms, but that right stops a short distance from my nose. You have the right to say whatever you like, but that right doesn’t permit you to tell lies about me. So you and I have the right to marry. But we must be unmarried and of age. Our prospective partner must also be unmarried and of age, and must consent. We cannot marry close kin. The proposed amendment does not remove any of these other limitations . So a limit on the application of the right is not, in itself, a problem.
It remains to be proven that the limitation of marriage to people of different genders is, then, an equality issue.
The Bill’s preamble claims that the prohibition on marriage between people of the same gender is a matter of discrimination, but to prove discrimination one must first prove harm. How are people in New Zealand harmed by making their public registered commitment under the Civil Unions Act rather than the Marriage Act? What are the differences between the two pieces of legislation that mean people are not being treated equally?
I heard someone on the radio claiming that he wanted the same right to marry as anyone other New Zealander. But of course that is exactly what he now has. He has the right, provided he isn’t married and is of age, to marry someone who is unmarried, not close kin, of age, and of the complementary gender, and who consents to marry him. He doesn’t want to do that, and – indeed – it would probably be quite wrong of him to exercise that right given that he is not attracted to members of the complementary gender. But he still has the same rights as any other unmarried person who is of age.
The article in the Universal Declaration has an interesting focus. The right to marry is linked – as tradition and practice has linked it through time – with the concept of family. I’ve posted before about the State’s right to legislate on marriage – that regulating and recording this particular relationship rather than any other is more about the rights of children than about the rights of adults.
I have a beef with the last part of the rationale from the Preamble to the new Bill. It objects to ‘limiting that human right [to marry] to 1 group’. It’s a pretty big claim that only 1 group can marry. That group contains all the millions of people who marry every year – varying ages, races, religions, ethnicities, nationalities, education levels, interests, occupations, and countless other differences that make combining them unlikely. All they have in common is that each couple is heterosexual. And the rationale, by implication, contrasts them with another group – similarly diverse - but not heterosexual. How insulting! Surely there are more important things to define people by than who they prefer to have sex with?
Of course, in New Zealand, people have a choice about which legislation they make their formal commitment under. Heterosexual couples can apply for a marriage license under the Marriage Act. Any couple can apply for a license to form a civil union under the Civil Unions Act. The Civil Unions Act changed more than 140 pieces of legislation to give civil union couples the same legal rights as married couples, with two exceptions: they cannot adopt as a couple, and there are some questions around maintenance for children of a household if the relationship splits up. If there are questions about these – and there are – let’s have legislation on the table about these points, and let’s debate them honestly and openly. The current Bill is trying to sneak in changes by changing the definition of the name of a treasured social institution. Not fair. Not right.
In a judgment this year, the European Court of Human Rights found that those entering civil unions are not entitled to the same rights as those who are married. However, they said that if gay marriage is legalised, then it would be discrimination to refuse services to gays wishing to marry (which would affect churches, wedding photographers, celebrants, and so on) or to treat gay adopting couples differently to heterosexual couples.
Let’s by all means talk about the rights of gay couples. But let us also talk about the rights of other affected individuals, and especially the rights of children.