Campaign for Civil Unions (Auckland) Inc

1 Introduction and Summary of Submission

1.1 Campaign for Civil Unions (Auckland) is an incorporated society formed to promote the successful passage of the Civil Union Bill and the Relationships (Statutory References) Bill, and to mobilise broad public support for the Bills. The society has a core membership of 20 people, and a broader support group of about 200 people.

1.2 We strongly support the Civil Union and the Relationships (Statutory References) Bills, and urge the Select Committee to recommend that the Bills be passed. The five key reasons for our support are as follows:

(a) The Bills treat all people in relationships fairly and equally, and end unjustified discrimination against gays, lesbians and de facto couples.

(b) The Bills reflect the reality of relationships in New Zealand today, and treat similar relationships in the same way.

(c) The Bills give all couples the same basic benefits and protections that are necessary and appropriate.

(d) The Bills ensure that our laws and our society are inclusive, tolerant of difference, respectful of individual choices, and equally supportive of all couples.

(e) The Bills are an appropriate and balanced response to the unjustified discrimination in the current law.

1.3 These reasons are further explained below. More detailed references and other resources are contained in Appendices 1 to 3 of this submission. We are also aware of personal stories where people have suffered discrimination under the current law.

A number of these people have made individual submissions to the Committee.

Their stories give a human face to the policy arguments made by us in this submission.

2 These Bills treat all people in relationships fairly and equally, and end unjustified discrimination against gays, lesbians and de facto couples

2.1 All people, whatever their-sexual orientation and marital status, should be treated fairly and with equal respect. The law should not draw distinctions between people just because they are lesbian, gay or straight, or because they are married or unmarried. It is the New Zealand way to offer everyone an equal opportunity, and to give everybody a fair go.

2.2 At the moment, the law does not treat everyone equally or fairly. Gays and lesbians are not given the same legal protections and benefits as heterosexuals, solely because they’re gay or lesbian. And de facto couples do not have access to an Submission of Campaign for Civil Unions (Auckland) Inc 2 appropriate backdrop of legal protections and benefits, simply because they are unmarried.

2.3 In not treating gays, lesbians, and de facto couples fairly and with equal respect as other couples, the law unjustifiably discriminates against these couples. We support the Bills, because the Bills end this unjustified discrimination.

2.4 There are two dimensions to the way in which the current law does not treat all couples fairly and with equal respect.

(a) First, gays, lesbians and de facto couples do not have the same legal benefits and protections as married couples. At the moment, the basic backdrop of rights that should apply to all couples does not apply to gays, lesbians and de facto couples. This basic backdrop of rights is discussed more fully at paragraph 4.2, below.

(b) Secondly, gays and lesbians do not have the opportunity to publicly affirm their commitment to each other, and have the law recognise that commitment. These are loving, long-term, committed relationships that the law refuses to recognise simply because the couple is gay or lesbian. In doing so, the law says that these relationships are simply not worthy of respect by the law and by society.

2.5 The discrimination currently faced by lesbians, gays and de facto couples is unjustified. Gays and lesbians are given fewer protections and benefits, simply because they are gay and lesbian. They are not offered an equal opportunity by the law, and are not given a fair go. Similarly, de facto couples are not given some of the basic protections and benefits that all couples should have, simply because they are not married.

2.6 The Bills address this unjustified discrimination. Gays and lesbians will be able to publicly affirm their commitment to each other, and have the law recognise that commitment. In fact, all couples will have the choice as to whether to enter into the new institution of civil union. And the Relationships Bill will give all couples the same basic legal protections and benefits that should apply to all couples, regardless of the legal form of their relationship.

2.7 A detailed examination of unjustified discrimination in New Zealand, and an international comparative analysis, is set out at Appendix 1.

3 These Bills reflect the reality of relationships in New Zealand today, and treat similar relationships in the same way

3.1 These Bills more accurately reflect the diverse nature of relationships that are present in society today. For example, it has become increasingly common for couples to have enduring and committed relationships without marrying each other.

In the 2001 census, 336,591 people said that they were in a relationship and were not married.

3.2 It is more difficult to assess the number of gays and lesbians in relationships, as this question was not asked at the last census. By matching those who said they have a live-in partner with the gender of the other occupant of the house, there are at least 10,491 people in same-sex relationships living together. However, this figure is clearly under-inclusive, as it does not include couples who do not disclose their relationship, who do not live together, or who also live with at least one other person of the opposite gender.

3.3 Whatever the numbers, the reality of New Zealand society today is that there are many unmarried opposite-sex couples and many same-sex couples in loving, committed relationships.

3.4 The Bills treat one-to-one relationships in society that are of the same character the same. That is, all adult, consensual, loving, committed, intimate, trusting and interdependent relationships are treated the same, with equal respect. No principled distinction can be drawn between couples who marry and couples who do not, and no principled distinction can be drawn between heterosexual couples and gay and lesbian couples.

3.5 For example, the American Psychological Association says that gays and lesbians want and have committed relationships, that their relationships are of equivalent quality to heterosexual couples, and that same-sex and heterosexual couples have similar relationship satisfaction, commitment and stability. This point is further developed in Appendix 2.

3.6 The argument that gay and lesbian relationships are less worthy is born entirely of prejudice, and is not based on principle.

4 These Bills give all couples the same basic benefits and protections that are necessary and appropriate

4.1 Both the Civil Unions Bill and the Relationships Bill are needed to give all couples the same basic benefits, protections and responsibilities that are necessary and appropriate.

4.2 First, the Relationships Bill. Presently, there are over 100 ways in which the law treats same-sex and opposite-sex de facto couples differently to married couples.

The Relationships Bills ensures that all couples have access to basic benefits and protections, and are subject to the same responsibilities. For example:

(a) social security, benefit and tax entitlements and responsibilities;

(b) surviving partner rights and entitlements when a partner dies;

(c) “next of kin” rights;

(d) procedural and evidential rights in legal proceedings; and

(e) responsibilities to disclose relationships under conflict of interests rules.

Submission of Campaign for Civil Unions (Auckland) Inc 4 4.3 The benefits, protections and responsibilities addressed by the Relationships Bill appropriately apply to all couples, whatever the legal form of their relationship: (a) Many of the benefits and protections are designed to provide basic protection and support for a person whose partner has died, is ill or incapacitated, or is otherwise facing a difficult situation. In these circumstances, the law should support all couples.

(b) Other laws being harmonised ensure that the entitlements and responsibilities of all couples are the same. We accept that under the Bills some same-sex couples will lose their entitlement to some benefits, but we believe this is a fair cost to pay as part of seeking equal recognition of all relationships under the law.

(c) The wider community also benefits by treating all couples on an evenhanded basis. For example, all people should be required to disclose conflicts of interest where necessary, and should not be able to avoid this requirement simply because of the legal form of their relationship.

4.4 The benefits, protections and responsibilities under the Relationships Bill appropriately apply to all couples, whatever the legal form of their relationship.

These rights are basic, and there is no need for an opt-in / opt-out regime for these rights and obligations. In contrast, the law provides for choice where appropriate: (a) Choice in the legal form of the relationship. Opposite-sex couples have a choice as to whether the form of their relationship will be a marriage, a civil union, or de facto. Same-sex couples have the choice of a civil union or a de facto relationship.

(b) Choice in property sharing arrangements. All couples will still be able to opt-out of the property sharing regime in the Property (Relationships) Act, and that choice will not be affected by these Bills.

4.5 The Bills provide a basic backdrop of rights and responsibilities that appropriately apply to all couples, with the legal form of the relationship and property sharing arrangements appropriately left to each couple to choose for themselves.

4.6 Secondly, the Civil Union Bill. Under the current law, there is no mechanism for same-sex couples to have their relationship legally registered. It has been said that the Relationships Bill addresses the particular instances of discrimination faced by gays and lesbians, and so the Civil Union Bill is unnecessary. We disagree.

4.7 A “deemed relationship” under the Relationships Bill does not have the element of public celebration and endorsement that a civil union does. It is as equally important to gays and lesbians to publicly affirm their commitment to each other before friends and family, and before the law, and to have the law recognise that commitment. The Civil Union Bill gives gays and lesbians the opportunity to do this, whereas the Relationships Bill by itself does not.

4.8 The public commitment, celebration and endorsement of relationships is important.

For example, weddings and wedding anniversaries are significant social events. It is society’s way of affirming and reinforcing the couple’s commitment to each other.

The Civil Union Bill will affirm and reinforce long-term, committed gay and lesbian relationships. We support that.

4.9 In addition to this, there are practical benefits of registering a relationship under the Civil Union Bill, rather than simply having a “deemed relationship” under the Relationships Bill. Access and entitlement to rights under the Relationships Bill will be easier and more realistic if people can prove their union with a state sanctioned certificate under the Civil Union Bill, both in New Zealand and overseas. This point is further explained in Appendix 3.

4.10 The effect of the Bills’ benefits and protections goes further than the two partners in relationships. The reality is that same-sex couples and de facto couples have children. The Bills are in the best interests and welfare of these children, by strengthening the relationships of de facto and same-sex parents. The Bills support the parents’ relationship, and reinforces their commitment to each other. We believe that this can only be in the best interests of the children to these relationships.

5 These Bills ensure that our laws and our society are inclusive, tolerant of difference, respectful of individual choices, and equally supportive of all couples

5.1 The law currently sends the message that gays and lesbians are less worthy of respect than other members of the community, and that their relationships are inferior. This was brought out by the Chief Justice of the Massachusetts Supreme Court in November 2003, when he said for the majority of the Court that the restriction against gays and lesbians marrying each other: confers an official stamp of approval on the destructive stereotype that samesex relationships are inherently unstable and inferior to opposite-sex relationships and not worthy of respect.

5.2 Much of the self-esteem of gays and lesbians, especially young gays and lesbians, comes from feeling affirmed and included in society. The current law stigmatises gay and lesbian relationships, and from our experience, this lack of validation has a detrimental effect on a number of gays and lesbians, especially young people.

5.3 Research from the American Psychological Association supports this conclusion.

The Association said in the research summary to its Resolution on Sexual Orientation and Marriage (annexed to Appendix 2): Taken together, the evidence clearly supports the position that social stigma, prejudice, discrimination, and violence associated with not having a heterosexual orientation and the hostile and stressful social environments created thereby adversely affect the psychological, physical, social and economic well-being of lesbian, gay and bisexual individuals.

5.4 In contrast to the current law, the Civil Union and Relationships Bills send the message that New Zealand’s law and society are inclusive, tolerant of difference, respectful of individual choices, and equally supportive of all couples. The law will no longer say that gays and lesbians are inferior to heterosexuals.

5.5 The Bills are consistent with New Zealand’s commitment to basic human rights, both nationally and internationally.

(a) The New Zealand Bill of Rights Act and the Human Rights Act prohibit unjustified discrimination on the basis of-sexual orientation and marital status. The current law is not consistent with these Acts (for a more detailed analysis, see Appendix 1).

(b) New Zealand agreed to the Universal Declaration of Human Rights in 1948, and signed up to the International Covenant on Civil and Political Rights (1966). Both prohibit discrimination on the basis of-sexual orientation (again, see Appendix 1 for detailed analysis).

5.6 These Bills will treat all couples, whatever their-sexual orientation or marital status, with dignity and respect, and treat all couples fairly, equally and consistently with New Zealand’s commitment to basic human rights.

6 These Bills are an appropriate response to the unjustified discrimination in the current law

6.1 We believe that the Bills are a practical, middle-of-the-road response to unjustified discrimination in the current law. They give basic benefits and protections to gays, lesbians and de facto couples, and give gays and lesbians the opportunity to publicly affirm their commitment to each other and have the law recognise that commitment.

The Bills balance this against concerns about the religious and social significance of marriage as traditionally being between a man and a woman.

6.2 The Bills do not go as far as some would like, and change the definition of marriage.

But they go further than others want, and give basic rights to lesbians, gays and de facto couples. We believe that the Bills strike a realistic, practical compromise between both points of view, and as such are an appropriate solution to the problems with the current law.

6.3 These reforms are similar to steps taken by other countries to address this form of unjustified discrimination, and are more modest than many similar reforms in other countries.

(a) Same-sex Marriage: Countries such as Belgium and the Netherlands, Canadian provinces such as Ontario, Quebec, British Columbia and the Yukon Territory, and the American state of Massachusetts have adopted same-sex marriage. Other areas in the United States, such as San Francisco, have issued marriage licences to same-sex couples in defiance of state law.

(b) Civil Unions: Countries such as Denmark, Finland, Greenland, Iceland, Norway, Sweden, Liechtenstein, Hungary and France have introduced civil unions (or equivalent). The American state of Vermont has adopted civil unions. England, Wales and Scotland are also proposing to introduce civil unions.

6.4 New Zealand’s proposed reform is in line with this world-wide trend, and consistent with the more moderate type of reform.

6.5 If the Bills are passed, New Zealand’s general relationships law will allow for choice where appropriate with a backdrop of basic rights that should apply to all (see the discussion at section 4, above). The balance of basic rights and a choice where appropriate is a suitable relationships law for New Zealand

6.6 Finally, research shows that a majority of New Zealanders support the current proposals. An AC Nielson survey in September 2003 asked 943 voters: Do you think that homosexual couples should be able to register their partnerships, giving them the same legal protection as married couples, even though they cannot get married?

6.7 64% of people said yes, and 30% of people said no. (The margin of error is 3.2% at the 95% confidence interval). A significant and clear majority of New Zealanders support the reform proposed by the Civil Union and Relationships Bills.

6.8 There is a mandate for this reform, and it is the fair and equitable thing to do. We support the Civil Union and the Relationships (Statutory References) Bills.

Appendix 1 – Unjustified Discrimination

New Zealand

Section 19(1) of the New Zealand Bill of Rights Act 1990 provides that: Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

The grounds of discrimination in section 21 of the Human Rights Act 1993 include-sexual orientation and marital status. The absolute right to be free from discrimination is, however, limited by section 5 of the Bill of Rights Act, which states: Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Therefore, the Bill of Rights Act prohibits unjustified discrimination against people on the basis of their-sexual orientation or marital status.

The Bill cannot be used by the courts to invalidate any other Act on the basis that it is inconsistent with the Bill of Rights (section 4). Accordingly, it is for Parliament (rather than the courts) to change the existing relationships laws to make them consistent with the Bill of Rights.

This was essentially the holding of the Court of Appeal in Quilter v Attorney-General [1998] 1 NZLR 523, where three same-sex couples applied to marry under the Marriage Act 1955. The Court held that it was for Parliament and not for the Courts to change the existing relationships law (see for example Justice Keith for the majority at p.570).

Although unnecessary for the purposes of the Quilter decision, Justice Thomas went further, saying that even though it was for Parliament to make any changes to the law, the Marriage Act 1955 unjustifiably discriminated against same-sex couples (page 554). Justice Thomas’ approach has been subsequently adopted internationally, where the courts have held that a failure to provide civil unions or same-sex marriage is unjustified discrimination against gays and lesbians.

The cases both in New Zealand and internationally have generally been in relation to unjustified discrimination on the basis of-sexual orientation. However, the same principles also apply to discrimination on the basis of marital status, which is a prohibited ground of discrimination in New Zealand.

International

New Zealand signed up to the International Covenant on Civil and Political Rights (1966) in 1978. Article 26 of the Covenant provides that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law”. This includes a prohibition against discrimination on the basis of a person’s-sexual orientation: Toonen v Australia at para 8.7 (ICCP Human Rights Committee) (1995) 69 ALJ 602. There is a similar provision in the Universal Declaration of Human Rights (1948).

The United States

In the United States, courts in Vermont, Hawaii and Alaska have held that the prohibition against gays and lesbians entering into civil unions or marriage unjustifiably discriminates against gays and lesbians. See Baker v State of Vermont (Vermont Supreme Court, 1999) 170 Vt 194, Baehr v Lewin (Supreme Court of Hawaii, 1993) 852 P2d 44, and Brause v Alaska (Alaska Superior Court, 1998) WL 88743.

The most recent American court decision is that of the Massachusetts Supreme Court in Goodridge v Department of Public Health (November 2003) SJC 08860. The Court held that the prohibition on gays and lesbians marrying is unconstitutional in Massachusetts. Justice Greaney said: I do not doubt the sincerity of deeply held moral or religious beliefs that make inconceivable to some the notion that any change in the common-law definition of what constitutes a legal civil marriage is now, or ever would be warranted. But, as a matter of constitutional law, neither the mantra of tradition, nor individual conviction, can justify the perpetuation of a hierarchy in which couples of the same-sex and their families are deemed less worthy of social and legal recognition than couples of the opposite-sex and their families.

Gay and lesbian couples are now able to marry in Massachusetts. The Civil Union and Relationships Bills in New Zealand do not go so far as the reform in Massachusetts, but like the Massachusetts reform, they do address the unjustified discrimination in the current relationships law.

The United States Supreme Court also considered the issue of discrimination in 2003, when it struck down anti-sodomy laws in a number of American states (Lawrence v Texas 539 US 558, 2003). Justice Kennedy for the majority said at p.13: our laws and traditions afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. … Persons in a homosexual relationship may seek [constitutional] autonomy for these purposes, just as heterosexual persons do.

Canada

In four separate cases, Canadian courts have held that the restriction of marriage to a man and a woman is in breach of the Canadian Charter, and unjustifiably discriminates against gays and lesbians.

The four cases are:

Halpern v Canada (Ontario Court of Appeal) [2003] OJ No 2268

EGALE v Canada (British Columbia Court of Appeal) [2003] BCJ No 94

Dunbar & Edge v Yukon (Supreme Court of Yukon) 2004 YKSC 54

La Ligue Catholique v Hendricks (Quebec Court of Appeal), March 2004-07-13

In Halpern, the Court held at para [94]: same-sex couples are capable of forming “long, lasting, loving and intimate relationships.” Denying same-sex couples the right to marry perpetuates the contrary view, namely, that same-sex couples are not capable of forming loving and lasting relationships, and thus same-sex relationships are not worthy of the same respect and recognition as opposite-sex relationships.

See also M v H [1999] 2 SCR 3, where the Supreme Court of Canada interpreted the definition of spouse as “a man and a woman” to also include same-sex partners, so as to be consistent with the anti-discrimination provision in Canada’s Charter.

Gay and lesbian couples are now able to marry in Ontario, Quebec, British Columbia and Yukon. The federal government has drafted a Bill that defines civil marriage throughout Canada as “the lawful union of two persons to the exclusion of all others”, and has asked the Canadian Supreme Court whether this definition is consistent with the Canadian Charter.

Again, the Civil Union and Relationships Bills in New Zealand do not go so far as the reform in Canada, but like the Canadian reform, they do address the unjustified discrimination in the current relationships law.

England

The English courts have not considered the question of same-sex marriage or civil unions.

However, in Ghaidan v Godin-Mendoza [2004] UKHL 30 (21 June 2004), the House of Lords held that a statutory reference to a person living with a tenant “as his or her wife or husband” must be interpreted as including same-sex partners, in order to be consistent with the antidiscrimination provisions in England’s Human Rights Act and the European Convention.

Baroness Hale said at para [132]: a guarantee of equal treatment is also essential to democracy. Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being. The essence of the Convention, as has often been said, is respect for human dignity and human freedom. … Second, such treatment is damaging to society as a whole. Wrongly to assume that some people have talent and others do not is a huge waste of human resources. It also damages social cohesion, creating not only an under-class, but an under-class with a rational grievance. Third, it is the reverse of the rational behaviour we now expect of government and the state. Power must not be exercised arbitrarily. If distinctions are to be drawn, particularly upon a group basis, it is an important discipline to look for a rational basis for those distinctions. Finally, it is a purpose of all human rights instruments to secure the protection of the essential rights of members of minority groups, even when they are unpopular with the majority.

Democracy values everyone equally even if the majority does not.

Conclusion

Although the cases cited above have all reached the same conclusion, they adopt a number of ways of analysing the question of unjustified discrimination. We recommend the following three-stage process in considering the question of unjustified discrimination.

Is there discrimination on a prohibited ground? That is, does the law draw a distinction between a person or a group of people and the rest of the community, and is the distinction made on one of the prohibited grounds? Here, a distinction is drawn between heterosexual couples and same-sex couples. Gays and lesbians are not entitled to the same legal benefits and protections as married couples. Gays and lesbians do not have the opportunity to publicly affirm their commitment to each other, and have the law recognise that commitment. These distinctions are drawn solely on the basis of-sexual orientation.

Similarly, a distinction is drawn between de facto couples and married couples. De facto couples do not receive the same basic backdrop of legal benefits and protections that married couples do. This distinction is drawn solely on the basis of people’s marital status.

Is the discrimination unjustified?

Once discrimination on a prohibited ground is shown, the onus is on those seeking to uphold the law to show that the objective of the discriminatory law is “pressing and substantial”, that the means adopted by the law to achieve that objective are rationally connected with the objective, and that the means are proportional in effect.

Here, there is no “pressing and substantial” objective in continuing the discrimination against same-sex couples. For example, it is often argued that purpose of marriage is creating and raising children, and that this is a “pressing and substantial” objective justifying the discrimination (see eg, Sameul Gregg, NZ Herald, 21 June 2004).

This argument does not follow. First, even if this is the objective of marriage, a new institution of civil unions is not inconsistent with this objective. Secondly, if the pressing and substantial objective of marriage is procreation, the law should require a fertility certificate for every couple before issuing a marriage licence. Indeed, on this argument, why do we allow infertile couples to marry? Women who have passed menopause to marry? People on their deathbed to marry? Thirdly, even if having children were a part of every marriage, it is only a part.

Procreation should not be raised above all the other aspects of marriage.

Fourthly, creating children is not limited to heterosexuals: both heterosexual and same-sex couples can and do have children by means such as adoption, fostering, surrogacy, and donor insemination. And finally, there are many children who have parents in same-sex relationships. Why should these children be penalised by refusing legal benefits and protections to their parents, and by the law refusing to recognise their parents’ relationship? Excluding same-sex couples from legal rights and recognition does not make the children of married couples more secure, but it does prevent the children of same-sex partners from enjoying the benefits of a more secure family structure.

There is no “pressing and substantial” need to keep the law as it currently is, let alone a rational connection or proportional effect. The discrimination against gays, lesbians and de facto couples is unjustified.

What is an appropriate remedy?

In some cases, same-sex marriage has been ordered as an appropriate remedy. In other cases, civil unions have been deemed sufficient. New Zealand is currently considering the more moderate remedy of civil unions, together with specific amendments to statutory and regulatory benefits and protections. This is an appropriate remedy for New Zealand, for the reasons set out in section 6 of the body of this submission.

Appendix 2 – No Principled Distinction

No principled distinction can be can be drawn between couples that marry and couples that do not, and no principled distinction can be drawn between heterosexual couples and gay and lesbian couples.

The American Psychological Association (APA) recently released its findings on the issue of same-sex relationships and parenting. The APA is the largest scientific and professional organisation representing psychology in the United States, and is the world’s largest association of psychologists. APA’s membership includes more than 150,000 researchers, educators, clinicians, consultants and students. It has divisions in 53 sub-fields, and affiliations with 60 state, territorial and provincial associations.

A copy of the APA’s press release dated 28 July 2004 and the APA’s research summaries, resolutions and references are attached to this appendix. The Association concluded by supporting same-sex civil marriage. In its press release, the APA said: discrimination and prejudice based on-sexual orientation detrimentally affects the psychological, physical, social and economic well-being of lesbian, gay and bisexual individuals; same-sex couples are remarkably similar to heterosexual couples; and parenting effectiveness and the adjustment, development and psychological wellbeing of children is unrelated to parental-sexual orientation.

In the research summary to its Resolution on-sexual Orientation and Marriage, it said: Research indicates that many gay men and lesbians want and have committed relationships. For example, survey data indicate that between 40% and 60% of gay men and between 45% and 80% of lesbians are currently involved in a romantic relationship.

Studies that have compared partners from same-sex couples to partners from heterosexual couples on standardized measures of relationship quality (such as satisfaction and commitment) have found partners from same-sex and heterosexual couples to be equivalent to each other.

Research indicates that, despite the somewhat hostile social climate within which same-sex relationships develop, many lesbians and gay men have formed durable relationships. For example, survey data indicate that between 18% and 28% of gay couples and between 8% and 21% of lesbian couples have lived together 10 or more years.

Research has found that the factors that predict relationship satisfaction, relationship commitment, and relationship stability are remarkably similar for both same-sex cohabitating couples and heterosexual married couples.

The same view was expressed in more personal terms by Justice Greaney of the Massachusetts Supreme Court in Goodridge v Department of Public Health (November 2003) SJC 08860. He said: The plaintiffs are members of our community, our neighbours, our coworkers, our friends. As pointed out by the court, their professions include investment advisor, computer engineer, teacher, therapist, and lawyer. The plaintiffs volunteer in our schools, worship beside us in our religious houses, and have children who play with our children, to mention just a few ordinary daily contacts. We share a common humanity and participate together in the social contract that is the foundation of our Commonwealth. Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance and respect. We should do so because it is the right thing to do.

The Civil Union and Relationships Bills will treat one-to-one relationships in society that are of the same character the same. That is, all adult, consensual, loving, committed, intimate, trusting and inter-dependent relationships should be treated the same, with equal respect.

No principled distinction can be drawn between couples who marry and couples who do not, and no principled distinction can be drawn between heterosexual couples and gay and lesbian couples. The only distinction derives from prejudice.

Appendix 3 – Practical Benefits of Civil Unions

The official registration of a relationship (such as under the Marriage Act or under the Civil Union Bill) makes a practical difference to people’s ability to rely on the legal rights and protections given to them by the Relationships Bill.

First, access and entitlement to rights under the Relationships Bill will be easier and more realistic if people can prove their union with a state sanctioned certificate. Otherwise, people will have to rely on determinations by officials as to whether two people are in a recognised relationship for the purposes of the rights given under the Relationships Bill (eg nurse at hospital for visitation rights, access to body at funeral home, receiving benefits at WINZ, etc).

These determinations are potentially ad hoc, inconsistent and invasive.

By way of analogy, the New Zealand Immigration Service requires couples to currently “prove” their relationship by giving evidence of:

- joint decision making and plans together;

- the existence of an exclusive-sexual relationship between the parties;

- sharing of parental obligations;

- sharing of household activities;

- sharing of companionship/spare time;

- sharing of leisure and social activities;

- presentation by the parties to outsiders as a couple;

- shared income;

- joint bank accounts operated reasonably frequently over a reasonable time;

- joint assets;

- joint liabilities such as loans or credit to purchase real estate, cars, appliances;

- joint utilities accounts (electricity, gas, water, telephone); and

- mutually agreed financial arrangements.

(Refer New Zealand Immigration Service Operations Manual, section F2.20.10.). In some circumstances, the same evidence may well be required to prove a “deemed” de facto relationship under the Relationships Bill. Civil unions eliminate the need to provide such evidence, by enabling couples to instead produce their civil union certificate.

Civil unions also mean that people will not have to apply to the Court to challenge officials’ determinations that they are not a qualifying relationship under the Relationships Bill. The Bill will enable couples to avoid significant costs and uncertainty.

Secondly, a registered and certified civil union is more likely to be recognised overseas than an unregistered uncertified relationship between two people. Where relationship rights overseas can only be accessed by evidence of the nature of the relationship, it will be easier for New Zealand couples with a state-sanctioned certified civil union to satisfy the evidential requirements than those with a non-certified non-registered relationship.

Further, some countries such as Sweden recognise both marriages and civil unions registered in other countries. Without the Civil Union Bill, gay and lesbian couples will not be able to take advantage of the international recognition of civil unions.

Registration and certification under the Civil Union Bill will offer certainty about access and entitlement to legal benefits and protection that presently only marriage provides. Without civil unions, same-sex couples will not have the same choice about whether to obtain the certainty that registration brings, and will not be able to take advantage of the international recognition of civil unions.

ENDS

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