Human Rights Foundation
of Aotearoa New Zealand
P O Box 106 343
Auckland
humanrightsfoundation@xtra.co.nz
www.humanrights.co.nz
To:
The Government Administration Select Committee
Marriage (Definition of Marriage) Amendment Bill 2012
1.
Introduction
1.1. This submission is on behalf of the Human Rights Foundation of Aotearoa New
Zealand.
1.2. The Human Rights Foundation is a non-governmental organisation, established in
December 2001, to promote and defend human rights through research-based
education and advocacy. We have made submissions on new laws with human
rights implications. We also monitor compliance and implementation of New
Zealand’s international obligations in accordance with the requirements of the
international conventions which New Zealand has signed, and have prepared
parallel reports for relevant United Nations treaty bodies to be considered
alongside official reports. Although the primary focus of the Foundation is on
human rights in New Zealand, we recognise the universality of human rights and
have an interest in human rights in the Pacific and beyond.
1.3. We understand that our submissions may be made publicly available if
submissions are requested under the Official Information Act 1982.
1.4. We appreciate this valuable opportunity to present our views to the Committee
and wish to have an opportunity to speak to our submission when the Select
Committee hears from submitters.
2.
Executive Summary
2.1. The Marriage (Definition of Marriage) Amendment Bill proposes to extend the
right to marry under the Marriage Act 1955 to couples who are not a man and
woman i.e. same sex couples and those involving transgender persons. We
support the Bill and see it as a necessary change to our law in pursuit of equal
rights of LGBT (Lesbian, Gay, Bisexual and Transgender) persons; according
them a dignity and status previously denied.
2.2. By enacting the Bill, Parliament will eliminate the sex-based classification for
marriage which has previously prevented this marginalised group from fully
exercising the rights accorded to heterosexual couples in similar circumstances.
2.3. Introductory speeches in the House of Representatives made reference to the high
rates of suicides amongst LGBT youth in particular. The recognition of equality
in marriage for LGBT couples is an important step in discouraging and removing
legitimacy for underlying discriminatory attitudes in our society, which have led
to the marginalising of sexual and gender minorities.
2.4. In taking this step, Parliament is acting consistently with New Zealand’s
international obligations under various international human rights instruments to:
(a)
(b)
3.
promote equality before and under the law for all members of society and to
eliminate discrimination based on sex/gender/sexual orientation;
promote the rule of law by ensuring our legislation maintains legitimacy for
marginalised groups and is firmly based on fairness and justice for all
members of society.
Equality
3.1. The 1948 Universal Declaration of Human Rights (UDHR) (broadly regarded as
legally binding under customary international law) and the International
Covenant on Civil and Political Rights (ICCPR) ratified by New Zealand in 1978
provide the context in which New Zealand enacted the New Zealand Bill of
Rights Act 1990 (NZBORA) and the Human Rights Act 1993. These statutes
specifically apply international human rights principles within New Zealand.
3.2. The relevant passage concerning equality rights in the UDHR is Article 7 which
reads:
“All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement
to such discrimination.”
3.3. Article 2 of the UDHR is as follows1:
“Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.”
3.4. In Part 2, Article 2, the ICCPR states that :
“Each state party to the present covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction,
the rights recognised in the present covenant without distinction of any
kind, such as race, colour, sex, language, political or other opinion,
national or social origin, or other status.”
Member States also (Article 2.2) commit to provide for and take the necessary
steps “as may be necessary to give effect to the rights recognised in the present
covenant.”
1
Similarly ICCPR article 2(1)
3.5. Article 26 of the ICCPR reads as follows:
“All persons are equal before the law and are entitled without any
discrimination to equal protection of the law. In this respect the law
should prohibit any discrimination and guarantee to all persons equal
and effective protection against discrimination on any ground such as
race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.”
3.6. It has long been the view of the United Nations Human Rights Committee and
other organs within the UN that the term ”sex” in Article 26 of the ICCPR and
Article 2 of the UDHR includes “sexual orientation”. Both articles also use the
wider term “or other status”, leaving it open to expand the categories of human
rights to be protected as they evolve.
3.7. In Toonen, the Human Rights Committee stated that “the reference to “sex” in
Article 2 paragraph 1 and Article 26 ICCPR is to be taken as including sexual
orientation”2
3.8. In its 2012 report Born Free and Equal, the UN Office of the High Commissioner
of Human Rights expresses concern at violence and discrimination against
individuals based on their sexual orientation and gender identity, globally. The
Office of the High Commissioner repeats and affirms the opening words of the
UDHR: “All human beings are born free and equal in dignity and rights”.
3.9. The underlying notion that all persons are born free and equal can only be fully
recognised if LGBT individuals have access to all of society’s benefits available
to persons who are married. These benefits include legal and social rights and
rights of societal recognition arising from participation in the institution of
marriage as recognised by the State.
3.10. It is consistent with New Zealand`s incremental approach to elimination of
discrimination on the basis of sex and gender, to extend to LGBT couples the
right to marry. The Marriage Act 1955 reflected the traditional views of marriage
of its time, as discussed in Quilter v Attorney General3. In that case, the Court of
Appeal considered that in spite of the recognised legal, social and political
changes since 1955 which engendered widespread acceptance of diversity in the
community, it was a matter for Parliament (not the Courts) to effect any change in
the Marriage Act to allow non-heterosexual couples to marry.
3.11. However it was there recognised by Justice Thomas (dissenting in part, p.533)
that: “Until participation in and access to the opportunities, status, social
institutions and advantages available to other members of society are assured,
distinctions which treat certain persons as being less worthy of concern, respect
and consideration on the basis of personal differences which are irrelevant, in
effect treat them as second class citizens.”
3.12. Now, more than 50 years after the Marriage Act 1955 was enacted, this Bill
provides the necessary step for Parliament to eliminate the formal legal inequality
which results in LGBT couples being treated differently to heterosexual couples
in the matter of marriage.
3.13. It is the Foundation’s view that the principle of equality at law as recognised
through the UDHR and the ICCPR and in our own statutes NZBORA 1990 and
2
3
CCPR/C/50/D/499/1997, at para. 8.7
[1998] NZLR 523 (CA)
the Human Rights Act 1993, now justifies the change the Bill will effect. It is
also the Foundation’s view that there are sound societal reasons for recognising
this measure of equality.
4.
The Rule of Law
4.1. The UDHR affirms the rule of law as fundamental to the protection of human
rights values: values shared by member states since 1948. The preamble
unequivocally proclaims that if tyranny and oppression are to be avoided, it is
essential that “...human rights must be protected by the rule of law”. It is noted
that the European Commission for Human Rights drew on this fundamental
notion in framing the European Charter of Human Rights.
4.2. The rule of law has been defined as the fundamental compact between the
citizens (governed) and the State (governor) by which the latter maintains power
and legitimacy in a democracy. The rule of law is said to comprise eight broad
principles which operate to maintain validity and integrity of the legal system.4
Lord Bingham`s analysis concludes that the rule of law includes the following
requirements:




The law applies equally to all citizens to ensure justice for all
The law is fair and just both in substance and as to process.
The law provides legal protection to such human rights as are seen to be
fundamental in that society
The State complies with its international legal obligations.
4.3. The Foundation supports the proposed Bill as it implements the State`s obligation
to ensure the rule of law; that the law applying to marriage applies equally to all
citizens; that in fairness, the marginalised LGBT group is not excluded from a
mainstream societal institution such as marriage.
5.
Other Human Rights Interests
5.1. It is accepted that the rights promoted in the Bill have a bearing on the exercise
of other human rights which are also protected in the NZBORA 1990, the Human
Rights Act 1993 and in the international instruments on which these statutes are
based. Religious groups have expressed their concern as to the impact of the Bill
on their own right to exercise and observe religious practices in accordance with
their religious beliefs. In the matter of marriage, these groups seek to maintain the
right for their religious marriage celebrants to solemnise marriages for
heterosexual couples only, in accordance with their doctrines and practices.
5.2. It is the Foundation`s view that religious interests should not per se prevent the
recognition of the right of marginalised sexual and gender minorities to marry and
to exercise the same legal rights as their heterosexual counterparts. The NZBORA
4 The Rule of Law, Tom Bingham, pub Allen Lane 2010
5.3.
5.4.
5.5.
5.6.
5.7.
5.8.
5.9.
5.10.
and the Human Rights Act 1993 recognise that the exercise of human rights
generally must accommodate the exercise of other recognised human rights where
there is a genuine conflict. However, this principle should not be used to prevent
the recognition of the existence of that right, in this case the right to marry. The
appropriate manner to address any genuine conflict in this case, is to provide the
means to accommodate the right for religious groups to observe their religious
practices, where that is necessary.
However care must be taken to ensure that this “accommodation” does not exceed
that which is strictly necessary to safeguard the right of religious groups to
observe their own religious practices. There is no basis in human rights law for
religious groups to impose their own values on other members of society, where
their legitimate interests are not genuinely affected.
The Foundation does not wish to prevent religious groups from practising their
faith (indeed, we support it as an important human right) nor do we seek to
impose on religious marriage celebrants any requirement that they act in breach
of their religious or ethical beliefs in solemnising the marriages of LGBT couples,
if it is against their religious faith to do so.
Recognition of the right for LGBT couples to marry does not affect the ability of
religious groups to maintain their own religious, ethical or moral teachings or
freedom of speech inside churches and other religious institutions.
Neither do we consider that this amendment would force individual religious
ministers or marriage celebrants to carry out marriages contrary to their religious
beliefs.
Section 29 of the Marriage Act 1955 provides that a marriage licence once issued
“shall authorize but not oblige any marriage celebrant to solemnize the marriage
to which it relates.” This section has been broadly interpreted as permitting
marriage celebrants to act according to their conscience in deciding whether to
conduct a marriage ceremony. This view is consistent with s.21B of the Human
Rights Act 1993, which permits actions which would otherwise amount to illegal
discrimination “...if that act or omission is authorised or required by an
enactment or otherwise by law.” Thus a religious marriage celebrant may refuse
to marry a non-heterosexual couple in reliance on these two sections.
Section 29 Marriage Act 1955 clearly authorises the marriage celebrant to decline
to marry a couple on grounds which are not otherwise prohibited by statute or
rule of law. However, it may be argued that section 29 does not go so far as to
permit acts which would otherwise be in breach of explicit legislation,
particularly human rights legislation which is a significant part of New Zealand’s
informal constitution. To avoid any doubt on this issue, there may need to be an
amendment to explicitly permit discrimination on grounds of sex/sexual
orientation by a religious marriage celebrant. The proposed amendment is set out
below.
It has also been argued that the New Zealand Bill of Rights Act (NZBORA) by
S3 applies to religious marriage celebrants, as they exercise a “public function,
power or duty” when acting under the Marriage Act 1955. As such they would be
required to solemnise any marriage if a licence has been issued.
Certainly the Registrar acts in such a capacity when deciding to issue a licence to
marry. But marriage celebrants appointed to conduct marriages act in an
essentially private capacity. The issue of a licence does not turn such a ceremony
into an act of government.
5.11. The distinction between private and public/government actions under s.3
NZBORA was fully considered by the High Court in Ransfield.5 According to the
principles enunciated in this case, the Foundation considers that marriage
celebrants act in a private capacity when exercising their functions under the
Marriage Act 1955. It is noted that the Human Rights Commission is also of the
view that marriage ceremonies that occur in churches remain essentially private
in nature.
5.12. It is noted that the decision in Quilter confirms that NZBORA applies to the
Registrar issuing a marriage licence under the Marriage Act, that this is clearly a
governmental act in nature and that the Registrar is a government employee.
Accordingly, the Registrar must act in compliance with s.19 NZBORA when
issuing a marriage licence, as would be expected with any licensing regulated by
the State. However this decision does not consider the marriage celebrant’s role.
5.13. Churches and other religious groups covered by Schedule 1 of the Marriage Act
1955 are exempt by s.32A from the strict formulation of ceremony to solemnise
marriages which generally apply. They are free to formulate their own
ceremonies within their own buildings including temples and mosques etc. They
remain free to conduct their ceremonies in conformity with their religious beliefs,
ethical and moral teachings. The Foundation considers that NZBORA does not
apply to religious bodies or marriage celebrants and that s.19 NZBORA (nondiscrimination) is not engaged. Religious groups remain free to conduct their
ceremonies as they wish.
5.14. Even if NZBORA were to be held to apply to marriage celebrants, the
amendment to s.29 Marriage Act 1955 proposed below would provide religious
marriage celebrants with a clear right to refuse to solemnise a marriage on the
basis of sex and sexual orientation. In the alternative, if the Human Rights Act
1993 applies the proposed amendment would clarify the right for specified
religious organisations to refuse to solemnise a marriage on these grounds.
6.
Proposed amendment
6.1. For the avoidance of any doubt about how NZBORA and the Human Rights Act
1993 might affect religious freedom of observance, an amendment could be
considered to make it clear that the Marriage Act does not require religious
bodies to solemnise marriages of non-heterosexual couples where this would be
against their beliefs, along the following lines:
S29 Marriage Act
1 A marriage licence shall authorize but not oblige any marriage celebrant to
solemnize the marriage to which it relates;
2
5
To avoid doubt, it is not unlawful under the Human Rights Act 1993 for a
marriage celebrant who is a nominee of a religious body listed in Schedule 1
to refuse, for reasons of faith or doctrine, to solemnise a marriage by reason
of the sex, sexual orientation or gender identity of either party.
Ransfield v Radio Network Limited [2005] 1 NZLR 233, Randerson J..
7.
6
Conclusion
7.1. The issues to be considered under the Bill have also been debated in the United
Kingdom as part of a consultation process for a similar piece of legislation. Even
those on the centre-right have argued the case for the equal right to marry on the
basis that if the benefits of marriage are as claimed by the traditional and religious
groups in society, (stability, security, fidelity, participation in societal institutions
etc) it is irrational to withhold these benefits from marginalised groups. It would
benefit society as a whole for the right to marry to be available to all sectors of
society and for them to be encouraged to make such a commitment.6
7.2. The Foundation considers the Bill to amend the Marriage Act 1955 is an
important advancement in human rights in New Zealand and is consistent with
developments internationally. Ten countries have now extended this important
human right to LGBT couples: Argentina, Belgium, Canada, Iceland, Mexico, the
Netherlands, Norway, Portugal, Spain and Sweden, as well as several states in the
USA.7
7.3. The Foundation therefore urges the Committee to support the passage of the Bill,
if necessary with the amendment proposed in Para 6.1 above.
See the considered views of conservative think-tank Policy Exchange in 2012 publication “What’s in a Name?
Is there a Case for Equal Marriage” www.policyexchange.org.uk.
7
Policy Exchange 2012 supra