Marriage (Straightness Clarification) Bill
A curious A4 flyer has landed in all MPs’ mail boxes today:
You must seriously consider your position on the Marriage (Gender Clarification) Amendment Bill
You might well ask why:
All members of Parliament have a duty before God to uphold the sacred institution of marriage
Oh, really? It goes on from there, but you get the idea.
What’s interesting is the names at the bottom - Andrew Simmons (Auckland), Phil Win (Auckland), Tim Lough (Wellington) and Doug Watt (Christchurch). Any of those ring any bells? Try looking at the centre bottom of the front page of this familiar flyer for a clue.
Or consider this line from the Herald in September:
The seven church members held a press conference at the Villa Maria Estate in Mangere, Auckland, to own up to the leaflets. They were: Neville Simmons, Timothy Lough, Douglas Watt, Phil Win, Greg Mason, Andrew Simmons, and Andy Smith.
The Secret Seven strike again.
Meanwhile, I’m glad to see that Michael Cullen’s legal opinion (as the previous Attorney General) on this Bill from Gordon Copeland that says that it breaches the Bill of Rights has finally made the light of day.
Also happy to see that the Bill is expected to be struck down today.
This Bill is a vile piece of social engineering. Will Copeland and his ilk ever get the message that legislating conformity is passe, is not going to work and oppresses real, live, breathing human beings?
Big ups to No Right Turn and I See Red, who’ve been leading the charge on this in the blogisphere.
December 7th, 2005 at 3:18 pm
Uh, just want to be picky on your title for this posting.
This Bill, as far as I’m aware, doesn’t stops gays and lesbians from marrying - so long as they marry each other, or a straight person.
You might want to question whether banning some marriages that are based in love and commitment while accepting some marriages that are for short-term self-interest (student loans or whatever) is really moral or sensible. But that’s another issue…
December 7th, 2005 at 3:24 pm
Um, not that I’ve personally got much of a beef with marriage in self-interest. So long as there is legal discrimination between married and non-married people, I reckon getting legally married to beat that discrimination is fair enough. Questions of commitment and love don’t really come into that.
But I suspect Gordon might see it as an issue…
December 7th, 2005 at 5:00 pm
You ought to note, of course, that Michael Cullen, as Attorney-General, did not consider that limiting marriage to between one man and women woman was discriminatory.
It was only clause 7 of the bill (which would amend the Bill of Rights Act) which was found to breach the Bill of Rights Act (an amazing feat of logic, if you ask me - which I blogged on here http://sparrowsarecool.blogspot.com/2005/11/comment.html)
December 7th, 2005 at 9:11 pm
I would question the use of the term “social engineering”. The Right also use this term for any Green Party policy they don’t like. It doesn’t actually add anything to a debate and has just become a meaningless term like “political correctness”. So when someone says something is “social engineering” or “political correctness gone mad”, then what they are really saying is “I don’t like it” - which may be true, but is not particularly edifying.
December 7th, 2005 at 9:55 pm
You ought to note, of course, that Michael Cullen, as Attorney-General, did not consider that limiting marriage to between one man and women woman was discriminatory.
It was only clause 7 of the bill (which would amend the Bill of Rights Act) which was found to breach the Bill of Rights Act (an amazing feat of logic, if you ask me - which I blogged on here http://sparrowsarecool.blogspot.com/2005/11/comment.html)
How could Clause Seven be discriminatory without the rest of the Bill, which relies on Clause Seven, also being discriminatory? Logic states that if c7 is required for the other clauses, and c7 is considered invalid due to being discriminatory, then the whole Bill is invalid for the same reason.
Kiore- I could be wrong, but the usage of “social engineering” in the post sounded like a jibe at parties who used that term to me, rather than a serious use of it.
Think of it as demanding parties like UF to be consistant- if legalising gay civil unions is social engineering, so is criminalising gay marriage.
December 7th, 2005 at 10:33 pm
Ari, section 7 of the New Zealand Bill of Rights Act, which requires the Attorney-General to report on inconsistent bills says this:
“Where any Bill is introduced into the House of Representatives, the Attorney-General shall,—
…
bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.”
The A-G is required to note inconsistencies between individual provisions in bills with the Bill of Rights, not inconsistencies of whole bills with the Bill of Rights.
The A-G considered clause 7 of the Marriage (Gender Clarification) Bill to be discriminatory. Clause 7 was (I can say was, now) the part of the bill which changes the bill of rights so that:
“Measures taken in good faith for the purpose of assisting or advancing marriage do not constitute discrimination.”
It was unrelated to any “concerns” surrounding the potential for gay marriage.
If you wish to look at what this means to the bill as a whole then what the A-G was essentially saying was that if you had removed clause 7 then there would be no problem at all with the bill.
What I was saying in the post on my blog was that however egregious one might have thought clause 7 of this bill to be, and even if one thought that there was absolutely no way the bill should become law, that the A-G was wrong in reaching that conclusion.
December 7th, 2005 at 11:19 pm
The bill went down 73-47. So much for this particular attack of the bigots. But I’m sure they’ll try again…
December 8th, 2005 at 12:02 am
Let me get this straight Edge (ba dum bum)
The bill was going to amend the Bill of Rights to include :
“Measures taken in good faith for the purpose of assisting or advancing marriage do not constitute discrimination.�
Manifestly the only reason for including this sentence in the Bill of Rights, is that otherwise the legislation would be challengeable as discriminatory on the basis of the Bill of Rights. The sentence seeks to sanctify marriage, thus taking it out of the domain of human rights!
Your point, I suppose, is that it’s up to Parliament, not the AG, to determine if this should be done… and it’s a fair one.
But what’s remarkable about the sentence is that, far from “protecting” marriage, it opens Pandora’s box! A subsequent law might stipulate that it’s OK to auction 13 year old girls to prospective husbands. This would not constitute any sort of discrimination, because it says so in the BOR…
On the other hand, this result would seem to open the door to same-sex marriages right away : effectively it has been deemed that marriage law is subject to the discrimination provisions of the BOR, so any attempt to prohibit SSM ought to be challengeable as a human rights issue.
December 8th, 2005 at 12:14 am
And OF COURSE the alleged libertarians of Act voted for the bill…
Meanwhile, with remarkably little fuss,
The UK introduces the marriage that dare not speak its name
http://www.guardian.co.uk/gayrights/story/0,12592,1658247,00.html
Up to 1,000 couples are expected to register for “gay marriages” today, under new laws making same-sex unions legal in Britain.
The Civil Partnership Act comes into force today and, after a notice period, the first ceremonies will take place in England and Wales on December 21. Couples in Scotland can hold the ceremony a day earlier.
[…]
The new act does not use the word “marriage” but grants virtually identical legal rights to same-sex couples as heterosexual couples. Gay marriages are legal in Belgium, the Netherlands, Spain and Canada.
The act allows same-sex couples to sign an official document in front of a registrar and two witnesses. Registration is available only to homosexuals and not as an alternative for heterosexual couples.
December 8th, 2005 at 12:46 am
Alistair,
“Manifestly the only reason for including this sentence in the Bill of Rights, is that otherwise the legislation would be challengeable as discriminatory on the basis of the Bill of Rights.”
This was my initial thought too, but on reflection I believe it was intended to do and allow much more. I think Larry Baldock and Gordon Copeland both think marriage is exceptionally important and a fundamental building building block of society and community, and that families which involve heterosexual married partners are better and do better than familes that do not. And not only that, but they wanted the Government to be able to do something about it - they wanted Government promotion of marriage, and government preference given to marriage - similar to marriage promotion schemes such as those advanced by George W Bush as Governor of Texas (I think) (and certainly schemes by a whole bunch of other similar republican (and even democratic) goverors in the 90s) I think even Clinton may have been supportive of such measures at the federal level).
Copeland/Baldock see marriage as for the good of society, and I suspect want tax incentives and other Goverment programmes to gives bonuses to people in marriages (UF’s income splitting taxation policy was (initially at least) only applicable to married couples). Presently things like this would be illegal, because they discriminate on the basis of marital status, but if the Bill of Rights was changed (”then we could pass all sorts of crazy laws”).
My point was that a clause amending the Bill of Rights can’t breach the Bill of Rights, because by definition if it passes it is the Bill of Rights.
You’re absolutely right that the sentence as drafted would open Pandora’s box, but this is often the case with member’s bills (which often aren’t drafted by lawyers, let alone by parliamentary counsel) - I’ve no doubt it would have been made more sensible if subjected to select committee scrutiny.
In any event, it’s probably not as bad as you suggest - most/all of the egregious examples one might come up with (like your auction example) you would want to challenge for Bill of Rights breaches on grounds other than breach of section 19 (freedom from discrimination), sections like section 9 (which includes the right not to be subject too degrading treatment) or section 17 (freedom of association). There would also be substantial argument about whether your example actually did advance marriage, and more likely, whether it was a measure “taken in good faith” - I’m pretty sure I know which side a future Attorney-General would have come down on in drafting a section 7 report
You will note too that clause 7 as drafted mirrors the following paragraph that is already in the Bill of Rights:
“Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.”
It is absolutely the case the marriage laws are subject to the discrimination provisions of the Bill of Rights, unfortunately, Quilter, the Court of Appeal case that said marriage was between a man and a woman (used in argument to show that this Bill was unnecessary) also said that the prohibition on same-sex couple marrying wasn’t discriminatory (this came as quite a surprise to everyone - in the High Court case that proceeded it the Judge basically just assumed it was discriminatory but said that even though it was it didn’t matter). In fact the decision of the Court of Appeal in this case is probably the reason why the A-G only found clause 7 in breach of BOR, and not the other clauses as well.
December 8th, 2005 at 10:02 am
Nobody seems to be enunciating clearly how incredibly insulting this bill is to the members of the Sikh, Hindu, Buddhist or Muslim communities, or any other non-Christian faiths for that matter, as “sacredness” in marriage is only defined there in ethno-centrically western Christian terms; which many mainstream christians would find abhorrent, as well.
The turnout on Parliament lawn yesterday was quite a good demonstration of the variety of people to whom this bill was insulting, including the pastors of gay-friendly churches, marriage celebrants, student groups, a large Rainbow presence, and some plain ol’ single parents and fans of de facto and other forms of “informal” relationships, which are not currently recognised in law as significant.
Perhaps a re-think on how we priviledge the positions of mostly married white men in parliament would be good around about now; at least the Greens have embraced MP’sand staff of many gender and marital stati, without predjudice, over the entire course of the party’s developement.
December 8th, 2005 at 12:23 pm
Katie, I didn’t notice any statements from Muslims, Sikhs etc opposing Copeland’s bill. Were there many Muslims, Sikhs etc at the picnic in Parliament’s grounds, showing their hostility to the bill? No, I didn’t think so. Because they weren’t the target.
Please get real. The bill was NOT a broad-front attack on all sorts of groups. It wasn’t defining sacredness so non-Christian faiths would be excluded — it was defining marriage so gays and lesbians would be excluded. It was a laser-guided bit of legislative nastiness aimed solely and clearly at gays and lesbians. Don’t muddy that fact by dragging in other groups that you imagine to have been affronted.
December 8th, 2005 at 12:47 pm
I kind of agree with NickB. Katie can you give some specifics to clarify why you think the bill was particularly christian?
Not that I agree with it at all. I can’t see any point in banning gay marriage or promoting marriage either. Both are personal choices and I disagree that they are ‘exceptionally important and a fundamental building building block of society and community’. I’m married myself, but I don’t see cramming it down the throats of my mates who choose to be single is in any way a building block of society and community. They contribute in their own way. Choosing to be polygamous, or serially monogamous, or polyamorous, or abstaining from sex, or being monogamous, are all totally personal choices. Our society is all the stronger for recognizing and accepting these individual differences.
December 9th, 2005 at 2:58 am
If you wish to look at what this means to the bill as a whole then what the A-G was essentially saying was that if you had removed clause 7 then there would be no problem at all with the bill.
What I was saying in the post on my blog was that however egregious one might have thought clause 7 of this bill to be, and even if one thought that there was absolutely no way the bill should become law, that the A-G was wrong in reaching that conclusion.
The point is, basically, that the rest of the bill depends on Clause 7 in order for it not to breach the Bill of Rights. You can’t take out such a dependant part of the legislation and still expect leave it intact- the Bill would not be able to go into practical affect, as any judge would rule it a breach of the Bill of Rights. You can’t say “that arguement is great, except for its dependancy.” It’s like removing a support from a skyscraper, the whole thing comes crashing down
December 9th, 2005 at 9:23 am
Ari, I believe I understand what you are saying (you’re arguing Larry Baldock inserted clause 7 so that the Bill wouldn’t breach the Bill of Rights).
In short, I believe you are wrong. IMO a bill consisting of only the first six clauses would not be ruled in breach of the Bill of Rights Act by a judge. The judge would considers himself/herself bound by the Quilter decision which says
1) That the Marriage Act already applies only to one man and one woman
and
2) That this heterosexual application of the Marriage Act is NOT discriminatory.
December 9th, 2005 at 4:07 pm
I really don’t see how you can arrive at (2), but yes, (1) is true in a practical sense.
The Bill of Rights does not permit discrimination on basis of gender. REGARDLESS of sexuality, this means that, if I wanted to limit marriage in a similar way to Baldock, the most I could do while logically agreeing with the BoR as it is, is to limit marriage to only two people. Saying they must be one man and one women discriminates on both the grounds of gender, and sexuality- neither of which is relevant to the matter of marriage in my mind- the point of a marriage is love, commitment, and fellowship with your family and religious peers.
Of course, from what I know of law, it’s not held to the same degree of consistancy as philosophical positions, so it very well may be legal that the Bill would pass without c7. But it would be illogical and discriminatory, even according to our other laws
December 9th, 2005 at 5:43 pm
Ari,
You and a lot of others.
I would say that there is probably general agreement in the legal community (at least among those who care about public law) that (2) was an erroneous conclusion. Indeed at the High Court I believe everyone just assumed the Marriage Act was discriminatory (but that there wasn’t anything they could do about it having found (1) to be the case - the Bill of Rights not permitting legilsation to be struck down if inconsistent). Nevertheless it was the conclusion the Court of Appeal reached, and is binding on the High Court.
For what it’s worth, I believe the Court’s reasoning was thus:
No person, regardless of gender or sexual orientation, may marry a person of the same gender as they are. Given that (if phrased like this) this does not differentiate between males or females, or gay, straight or bi, it was conluded that there was no discrimination. In light of more recent decisions of American state courts, the Supreme Court of Canada, and the Constitutional Court of South Africa (among others) I suspect some of the may now think this formulation and conclusion were wrong - and I am confident that it was concerns of this nature that led Baldock and Copeland to try their hands at a members’ bill.