Licensing discrimination

Why should we oppose the Marriage (Gender Clarification) Amendment Bill? Quite apart from its attempt to define marriage as being exclusively heterosexual, there is another reason: the bill would effectively overturn the Human Rights Act's provisions forbidding discrimination on the basis of marital and family status and licence active discrimination by private individuals in favour of (their interpretation of) marriage.

Clause 7 of the bill amends s19 of the New Zealand Bill of Rights Act 1990 to note that

Measures taken in good faith for the purpose of assisting or advancing marriage do not constitute discrimination.

In accordance with section 7 of the Bill of Rights Act, the Attorney-General notified Parliament [PDF] that this clause would violate the BORA, as it

distinguishes between persons who are married and those in other types of relationships (such as those in a civil union or de facto relationship). This distinction is disadvantageous on the grounds of marital status and sexual orientation (as same sex couples are unable to get married) as it affords protection to future legislation, policy or practice that may be discriminatory vis-a-vis those groups.

(Emphasis added)

As can be seen from this press release, this was clearly Larry Baldock's purpose in introducing the bill: to allow the government to "strengthen and support" marriage by engaging in outright discriminatory behaviour. This is bad enough; the government should not be attempting to privilege any particular social arrangements, as those choices are rightly the domain of individuals - but it gets worse. The clause wouldn't just licence discrimination by the government, but by private individuals as well. At present, such disrimination is prohibited under sections 21(1)(b) and 21(1)(l)(iii) of the Human Rights Act. But that Act - as with every other Act in New Zealand law - must be interpreted through the lens of the Bill of Rights Act. Which would say that discrimination on the basis of marital and family status would be allowed, at least to the extent that it can be argued that such discrimination is a "good faith" effort to "advance" marriage...

Think of the abuses that these clauses were supposed to end. What arguments did people use to justify refusing to rent accommodation to unmarried couples? That by showing social disapproval, they were providing an incentive for marriage. What arguments did employers use in the 50's when refusing to employ married women? That they should be "spending more time with their families" - i.e. that denying them a job would somehow advance marriage. This clause would give prima facie legal protection to such discrimination. And that's something I don't think even the social conservatives who support a heterosexual definition of marriage really want to return to.