Does the Civil Union Bill Legalise Marriage?

The Dominion Post made a gaffe yesterday morning in an article featuring statements made by Cardinal Thomas Williams relating to recent government policy changes and responses to them made by the Prime Minister. The article entitled "Civil Union anger a bit sad, says PM" (A2, 29

June 2004), written by Tracy Watkins, stated:

"The head of the Catholic Church in New Zealand is the latest to join in the fray, firing a salvo at recent governments for policy changes including the Civil Union Bill, which legalises gay marriage, and prostitution law reform”. [P. A2]

The Civil Union Bill does NOT legalise gay marriage. It provides same-sex couples and heterosexual couples in de facto relationships with the opportunity to: (1) legally register their
relationships as a civil union, and thereby (2) gain social recognition of their relationship via a mandatory solemnisation process – that simply requires a statement to be made by both individuals, either in the presence of the Registrar or civil union celebrant, together with two witnesses. The parties must say "I [full name] take you [full name] to be my partner in our civil union", or words to that effect. Heterosexual couples in de facto relationships will be able to opt for a civil union as an alternative to a marriage but same-sex couples will not be able to get married.

The Civil Union Bill, along with its companion Bill – the Relationships (Statutory References) Bill - if enacted into law, will create a parallel institution to marriage, a civil union. It is the latter Bill that will confer on all couples (same-sex and heterosexual) - whether in civil unions, marriages or living in a de facto relationships - all the same benefits currently conferred on those who are married. The effect will be, that with a few minor exceptions, same-sex couples, whether in a civil union or de facto, will have to be treated under the law in the same way as married couples. The exceptions are: (1) no same-sex couple, whether in a civil union or de facto relationship, can apply to get married, while heterosexuals in civil unions can, and (2) civil unions carried out in New Zealand will not be recognised in some overseas jurisdictions while marriage status is accepted universally.

Opponents of the Bill are concerned that if the Civil Union Bill and its companion Bill are both passed into law by Parliament, it will only be a matter of time before the Government changes the Marriage Act to allow same-sex couples to marry. Gay couples in the yet-to-be legally recognised civil unions will argue that they are being discriminated against if they cannot get married citing the Human Rights Act criteria relating to illegal grounds for discrimination, in particular “sexual orientation”.

The Explanatory Note to the Civil Union Bill also states:

“In Quilter v Attorney General [1998] 1 NZLR 523 the Court of Appeal held that the Marriage Act 1955 applies to marriage between a man and a woman only and that this does not constitute discrimination. The Human Rights Amendment Act 2001 requires that government activities be subject to the anti-discrimination standards set out in section 19 of the New Zealand Bill of Rights Act 1990 and section 21 of the Human Rights Act 1993. Prohibited grounds of discrimination include sexual orientation.”

In the Quilter case, the court was faced with a challenge to the denial of marriage licenses to three lesbian couples. The couples, relying on New Zealand’s gender-neutral marriage law, argued that the Bill of Rights Act which forbids discrimination on the grounds enunciated in the Human Rights Act of 1993 (which includes both sex and sexual orientation). The case was unanimously dismissed. For a good summary of Quilter v. Attorney General CA 200/96

(N.Z. CT. APP. 1997) see: http://www.marriagewatch.org/cases/quilter.htm

The Marriage Act will be changed if the Relationships Statutory References Bill is enacted into law. It will be amended to specify that its provisions – such as those applying to dissolution of the marriage - apply to those in civil unions (involving same-sex and heterosexuals).

The Society for the Promotion of Community Standards president, Mr Mike Petrus, says:

“Marriage is fundamentally and undeniably different to a same-sex civil union and same-sex de facto relationship. The law must recognise these differences and confer special status, responsibilities and rights to those who have entered the committed relationship (marriage) that is foundational to society’s very existence and indeed to the very survival of the human species. It is dishonest for lawmakers to pretend that the law can make relationships that are fundamentally different, the same. Marriage involves a man and a woman. A Civil union can involve a same-sex couple who cannot together produce a child who is biologically related to both partners.”

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