On Wednesday, Parliament will vote on the Marriage (Gender Clarification) Amendment Bill. For those who don't know, the bill would amend the law to forbid same-sex marriage in New Zealand or the recognition of same-sex marriages contracted overseas. It would also amend the Bill of Rights Act to effectively overturn existing provisions barring discrimination on the basis of marriage or family status.
Via Dean Knight, I see that the Campaign for Civil Unions has issued a factsheet [PDF] on the bill which denounces these provisions:
The proposal to exempt measures which assist or advance marriage from anti-discrimination protections is, however, unacceptable. Freedom from discrimination is one of the cornerstones of our society and the country has reinforced this principle of equality in our Bill of Rights. The Attorney-General has already warned Parliament that this Bill is inconsistent with the Bill of Rights and an unjustified breach of freedom from discrimination.The recent debates about civil unions show that there are no objectively justifiably reasons for treating married and (same-sex) civil union relationships differently. This Bill is a smokescreen which tries to undermine the measures taken to remove the discrimination against gay and lesbian couples. The promoters of the Bill are simply trying to, once again, raise the arguments about the differences between heterosexual and homosexual relationships that were firmly rejected by our Parliament when it passed the Civil Union Act.
In a comment to Big News, United Future MP Gordon Copeland has claimed that the discrimination provision
is actually aimed, for example, at a church group being able to offer a marriage preparation course, without at the same time, having to offer a civil union preparation course.
But if so, this is using a very large legislative hammer to crush a very small nut. If this is the goal, then the correct procedure would be to create an exemption to the Human Rights Act specifically for that purpose, rather than allowing blanket discrimination by all and sundry. And it is worth noting that existing provisions in the Human Rights Act (such as s45 and s59) already allow limited discrimination (though not on the basis of marriage) in counselling services "where highly personal matters, such as sexual matters or the prevention of violence, are involved". I can only conclude that either Copeland is being deliberately disingenuous about this, or that the people in United Future who are responsible for this bill understand neither the existing legislation nor how to properly draft amendments to it to achieve their desired effect.
On a positive note, I've been informed that National will be allowing a free vote. Under these circumstances, the bill is almost certain to fail. Still, we cannot take that for granted, and I urge everyone to lobby National MPs (and particularly those on this list here) to encourage them to vote against the bill.
9 comments:
How about s58 of the Human Rights Act? This permits refusing to admit students of a different religious belief to an educational establishment. "``educational establishment'' includes an establishment offering any form of training or instruction" - a church that runs courses should certainly qualify. This should be quite sufficient to allow exclusion of unmarried couples from church courses.
Posted by Commie Mutant Traitor : 12/05/2005 02:51:00 PM
You're right; I'd skipped over that one as I had thought it was more applicable to schools - though I note that it also does not permit discrimination on the grounds of family status.
I don't really see any problem with what Copeland is suggesting (it's a basic exercise in freedom of religion for a church to constrain its teachings in this way) - but I also don't see any evidence that there is actually a problem with churches being forced to provide services in the way that he fears either. And in any case, his proposed solution is such an egregious overkill that it casts suspicion on his motives.
Posted by Idiot/Savant : 12/05/2005 03:23:00 PM
I think family status can be classed under religion easily enough. If a church forbids sexual relationships outside marriage, then it would be hard to deny that a couple deliberately violating that rule have different religious beliefs from that church.
You're quite right that there is no such problem and Copeland's motives are suspicious. The introduction of civil unions hasn't change anything, since the same "argument" could previously have been made about de facto couples.
Posted by Commie Mutant Traitor : 12/05/2005 04:30:00 PM
Copeland also noted in the comment on my blog that people had to understand the distinction between differentation and discrimination. Someone tell me why, if there is no distinction in this issue, we haven't got same sex marriage
If you find ita little difficult, vist my blog to find an indication
Posted by Swimming : 12/05/2005 05:56:00 PM
I think there is an academic debate about whether there is a distinction between "discrimination" and "differentiation" - seen particularly in Canadian jurisprudence. Off the top of my head, it somewhat off a spill-over from the US, with their unique approach equality and the absence of a balancing provisions. In short, again from memory, the Canadian jurisprudence requires not only differentiation but also that the different treatment undermines the dignity of the person. That is, trifling differential treatment is not discrimination.
I've never been that taken by the analysis. In my mind, differential treatment is discrimination. However, it may be justified. And we scrutinise discrimination in 2 ways:
- section 5 of the Bill of Rights "reasonable limits demonstrably justified in a free and democratic society"
- the specific exceptions and section 92 (general exception for genuine occupational qualifications or genuine justifications).
Therefore no need to read down the meaning of discrimination. And once again, no need to Copeland's Bill (if the differential treatment can be objectively justified, it will survive scrutiny).
Posted by Dean Knight : 12/05/2005 08:32:00 PM
PS the second bullet point was referring to the Human Rights Act!
Posted by Dean Knight : 12/05/2005 08:33:00 PM
Dean, I agree that differential treatment is discrimination and it can be justified. In the Quilter decision, Justice Gault disputed arguments that the marriage law discriminated on the basis of sex or sexual orientation, because the denial of a choice is not discrimination just because the person is in a protected class ( or any class, for that matter) . He said that as differentiations can be an appropriate tool of social policy including the advancement of “community values” mere differentiation was not discrimination.
Justice Tipping added that if the argument that the impact of the marriage law could establish discrimination many other groups could claim discrimination in not being allowed to marry. Marriage has to discriminate in some way otherwise it will be meaningless.
Anyway, if Parliament decide not to amend S19 if the BORA , the Attorney General will not say that this bill breaches the BORA. He shouldn't have said that it does in any case, as it is rubbish to say that it "affords protection to future legislation, policy or practice that may be ( unlawfully) discriminatory vis-a-vis those groups" as future legislation can override this bill, if passed.
Posted by Swimming : 12/05/2005 09:42:00 PM
Dave
1. I'm not sure that Quilter stands as a paragon case about discrimination. Quite frankly I think our judges, particularly Ken Keith, must be thoroughly embarrassed by that aspect of the decision. It is notable for being completely out of line with almost every other same-sex marriage case. And there seemed to be a profound ignorance on Gault J's part about the difference between direct discrimination (which he discussed) and indirect discrimination (which was clearly raised in the case).
2. I also have some problems with the Attorney's report. His analysis for the Bill of Rights implicitly presupposes that Quilter was wrongly decided and the exclusion of gays from marriage amounts to discrimination. Yet no report on restriction of marriage to straights.
Posted by Dean Knight : 12/06/2005 06:43:00 AM
Dean:
To be charitable to the Court of
Appeal though, Goodridge and
Canadian same-sex marriage case
law emerged after Quilter was
decided.
However, bear in mind that we
have an unentrenched Bill of
Rights, not a written
constitution like Canada's Charter. Parliamentary sovereignty
still prevails, and will, until
this state of affairs changes.
Craig Y.
Posted by Anonymous : 12/07/2005 12:14:00 PM
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