Love Does Discriminate - And So Does The Law

The catch cry of the supporters of the Civil Union Bill is ''Love doesn't discriminate, neither should the law''. They haven't even got it half right.

They`d be closer to the truth if the law was based on love. But, as we know, it isn't. Despite our Bill of Rights Act and our Human Rights Act the law still discriminates - and always will. So will love. Discrimination is about different, often preferential treatment, and although I love both my parents and my partner, I give preferential treatment to my partner. Currently the law gives preferential legal treatment to heterosexual couples, especially those in a marriage. This is discrimination as it is different treatment.

Section 21 of the Human Rights Act 1993 provides freedom from discrimination on prohibited grounds, such as marital status, sexual orientation and family status. However, marital status has been rendered irrelevant in a variety of contexts due to judicial and legislative recognition of common law and same sex relationships. Family status can refer to one who has the care of children, one who is in a sexual relationship with a particular person, or one who is a relative of a particular person. It does not refer to a family unit or a couple, despite these words from Christchurch Central MP Tim Barnett.

"People living in same sex relationships are not recognised or protected by the state as a couple. And different sex couples who choose not to marry face the same challenges. This is a breach of our Human Rights Act, which guarantees no discrimination on the basis of sexual orientation or family status."

However, our Human Rights Legislation does not protect couples, it protects individuals. If family status was interpreted to protect the family unit, or couples, someone who is a relative of a particular person should have the same legal rights and recognition as someone who is in a relationship - married, de-facto or gay.

The government is attempting to give most unmarried couples in sexual relationships the same legal status as married couples for one reason only - so as not to discriminate on the basis of heterosexual orientation or family status. Yet, despite our Human Rights legislation, the Government does not want to give this status to relatives, perhaps because a couple consisting of a person and a relative is not recognised by the state in the Marriage Act.

But neither are same sex couples. The difference is that same sex couples are included in civil unions, whereas a person and his or her relative - gay or straight- will not have similar legal protection, even if they live together. This is discrimination.

Our Bill of Rights (BOR) does not mention equality, let alone affirm or protect a right to it. Equality has long been understood as requiring that like be treated alike while unalike are treated in proportion to their difference. That is why all individuals - gay, straight, married and unmarried - are treated the same before the law.

However, when they form couples, the legal equality is not so equal as the unalike are treated in proportion to their difference. Gay couples are different to straight couples, polygamous marriages are different to monogamous ones. Perhaps this is a reason our government, our courts, and the public, on the whole, do not support gay and polygamous marriages. The language of equality was deliberately left out of the BOR in favour of the simpler right to freedom from discrimination.

"Equality before the law" is not used anywhere in the BOR. Nor is the phrase "equal protection from the law". Nor is "recognition". Yet freedom from discrimination does not always lead to equality before the law, and prohibited discrimination based on sexual orientation does not include a transsexual or transgendered orientation - but it does include those of a heterosexual orientation.

The BOR does not mention discrimination or equality in terms of groups other than minorities - it mentions discrimination in terms of individuals, not couples, just like any other civil and political right. If our human rights legislation affirmed equality for groups, we would not be looking at civil union legislation, we would be looking at a Marriage Reform Bill - and we wouldn't be limiting marriage to two people either.

It is important to note that the Human Rights Act dos not prohibit discrimination per se. It prohibits actions taken "by reason of" the prohibited grounds of discrimination in the variety of contexts in which the Act applies. In contrast, the BOR establishes a right to be free from discrimination on prohibited grounds.

It is also important to note that, in terms of the BOR, gay people are not a classed as a minority group - unless they are part of a linguistic, ethnic or religious minority. So the claim that Civil Unions will ensure that the BOR is adhered to, as it will legally protect a minority group called the gay community is irrelevant.

In terms of the BOR, a civil union is not a human rights issue any more than marriage is. Marriage is not a human right. It can't be - singles that have no one to marry have no right to get married - they couldn't even if they wanted to.

So all individuals are equal before the law. If you have a partner, you can get married if you want to, irrespective of ones sexual orientation - as long as the partner is of the opposite sex. All couples are not equal before the law, however, but the Civil Union Bills will ensure that they will be.

Well, sort of.

The "unalike" will still be treated in proportion to their difference - gay couples won't be able to marry, adopt (just yet) or divorce, so it's not legal equality. It's just that the government, through civil unions, wants to shift the goalposts of legal treatment in favour of gay couples, based on a readjusted proportion to their difference compared with straight couples.

And I guess that is what opponents of the bills don't like.

Heterosexual de facto couples are included in the mix so as not to breach sexual discrimination provisions. Relatives are ignored. Relatives will be discriminated against on the basis of family status - and also in both the Marriage and Civil Union Acts.

Currently gays and lesbian couples cannot formally recognise their relationships. This is not discrimination on the basis of sexual orientation any more than it is discrimination relating to freedom of choice as a result of one's orientation.

Love doesn't discriminate, but the law will always discriminate. Gay couples will still not be able to marry. Divorced people will still have to wait two years to remarry. Kids will still not be able to get drivers licenses, and only MPs in limousines will be allowed to legally speed without displaying warning lights or sirens.

Unjust discrimination is more adequately dealt with in the Relationships (Statutory References) Bill - and without the passage of that bill, the Civil Union Bill, if passed, will be toothless as it currently stands.

Dave Crampton is a Wellington writer and blogs at http://big-news.blogspot.com

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