|Rainbow Wellington’s submission
SUBMISSION ON THE MARRIAGE (DEFINITION OF MARRIAGE) AMENDMENT BILL
1 This is the submission of Rainbow Wellington on the Marriage (Definition of Marriage) Amendment Bill
2 Rainbow Wellington is a group of gay and lesbian citizens and those of related orientation which, among other concerns, pursues matters regarding the human and civil rights of its members and others affected. We have somewhat over a hundred members and a mailing list of seven hundred or so others. Although we are regionally based we generally pursue matters of national significance. Over the past few years we have taken up issues relating to discrimination in insurance, blood donation, censorship on the grounds of sexual orientation, and discrimination in the workplace, among others. Obviously this gives us an interest in same sex marriage.
3 Our interest is informed by a particular perspective. We do not see this primarily as a matter of the extension of a human right into an area in which it has not previously pertained. Rather it is, in our view, a question of the removal of a long standing prohibition which exists largely for historical reasons and which can no longer be sustained in the light of the decriminalisation of homosexuality in 1986 and the passage of the Human Rights Act in 1993. This latter Act forbids discrimination on the grounds of sexual orientation. The refusal to accept the legal status of marriage as between a same sex couple when it is available to heterosexual couples is clearly discrimination and an unsustainable conflict of laws as between the Marriage Act and the Human Rights Act and must be resolved in favour of the latter in the context of current legislation.
4 The onus, therefore, if the current prohibition is to be retained, is on those who wish to retain it to justify this rather than for those who support the change to find reasons for it. We would like however, in this submission, to anticipate the arguments they might advance to do so (as far as we understand them) and to rebut these.
5 We note that a number of those opposing the removal of this prohibition advance an argument from religion i.e. that this would offend a deeply held religious belief. We respect the beliefs of those who hold this view but with equal respect to them, we remind them that New Zealand is a secular society with no established religion. What an individual believes is their own private affair but in matters relating to belief that individual is not entitled to impose those beliefs on others in their role as citizens. There are many things which people believe or profess which might offend or upset any of us. But this is an inseparable consequence of living in a free society which requires that we tolerate in others what they say or do without direct harm to us and that they should accord us the same tolerance. We cannot see that the passage of this legislation will harm anyone in any way. Those who find that it offends their religious beliefs will nevertheless be free to practise those beliefs in any way that they have done previously. It will certainly not require them to compromise those beliefs by making changes to their usual practises or liturgies or to make these available for use by others when they do not wish to do so.
6 Further to that, it has been suggested that the Human Rights Act will compel celebrants to perform same sex marriages. This is not the case. S.29 of the Marriage Act 1955 makes it absolutely crystal clear that the issue of a marriage license does not imply a requirement on a celebrant to solemnise a marriage. The organisation Family First has published an ‘opinion’ from a lawyer to the contrary but this has been quickly contradicted by the Human Rights Commission and a number of other legal authorities who have pointed out the flaws in this assertion. There is no provision in the proposed Bill to change this situation
7 Others in a variation on this theme say that marriage is a religious sacrament ordained by God (whether Christian or otherwise) and should not be extended to those who do not hold to the religion in question. Those advancing this view, again with respect to them, are clearly not conversant with the history of marriage in our culture and the fact that its association with religion has been peripheral at best in the eyes of the law over many centuries. Some interesting historical and literary instances of this may serve to illustrate this point:
• The essence of legally recognised marriage has always been a pledge on the part of the parties and the declaration of this pledge before witnesses, followed by the sexual consummation of the relationship (although this latter has never been an actual legal requirement except in the negative sense of it not occurring being grounds for the dissolution of the marriage). The word ‘wedding’ derives from an old English root word meaning ‘a pledge’ and has nothing to do with religious ceremonies as such.
• If one turns to the Canterbury Tales of Geoffrey Chaucer in the late fourteenth century one finds the Wife of Bath boasting that she has had a number of husbands ‘at the church door’. This is a reference to a widespread and centuries old custom recognised by the courts that any persons who stood at their local church door and facing the public space before them declared their pledge of marriage to one another, were thereby married in the eyes of the law. This did not require involvement of the church authorities or any further ceremony.
• The same declaration made in private and accompanied by an exchange of rings in the presence of witnesses was also long recognised by the courts as a legal marriage.
• Those familiar with the literary works of Thomas Hardy in the later nineteenth century will know that his novel The Mayor of Casterbridge commences with an event pivotal to the plot in which the eponymous protagonist leads his wife into the rural market place with a halter around her neck, and declares both his divorce from her and her marriage to another person who is also present. Far from being a bizarre and unique plot device invented by Hardy this practise was very widespread over several hundred years and was widely accepted as constituting a marriage. The social historian Edward Thompson who has investigated the practise remarks in an essay ‘The Sale of Wives’ in his Customs in Common (1991) on the nearly three hundred published accounts of such events he discovered in the course of the nineteenth century alone when he researched this topic.
• There have been many and numerous folk customs which have sanctified marriage in a wide range of societies and cultures, none of which have anything to do with a deity or religion. For example in the ante-bellum southern United States a marriage among slaves entailed the couple leaping over a raised broom handle while holding hands. The expression ‘jumping the broom’ was a colloquial way of expressing the fact of marriage in black American culture for many decades well into the twentieth century.
8 The creation of specific legislation in English law relating to marriage (but not in Scotland) begins only with the passage of the Marriage Act in 1754 which granted the Church of England a partial monopoly. This, however, was not a response to religious sentiment but to problems and issues of law associated with inheritance and the legitimacy of children. Even in that case it did not apply to Roman Catholics, to Jews, or dissenters such as Quakers. Today the performance of a religious service of marriage still does not create a legal marriage in itself but requires the signing of certain forms mandated by the state before it becomes valid.
9 The possible conflicts these practises entailed between canon law i.e. the law of the church, and the law of the land were long recognised by canon lawyers, and as I am sure most people know, lay at the root of the rift between papal Rome and Henry VIII over the question of whether he was legally married to Catherine of Aragon. The debate this occasioned continued for decades after this dispute was resolved. Thus in his widely read work The Christian State of Matrimony published in 1541 the theologian Heinrich Bullinger refers to a practise known as ‘hand fasting’ or ‘troth pledging’ (of which he didn’t quite approve) and says: “in some places there is such a manner, well worthy to be rebuked, that, at the hand fasting there is made a great feast and superfluous banquet, and even the same night are the two hand fasted persons brought and laid together, yea, certain weeks before they go to the church.” In other words they were considered to be married by virtue of their pledge and consummation whether or not they had been anywhere near a church or a religious service at the time this occurred.
10 In fact, the ceremony in church need not occur at all in this customary practise. There are many references to this in the works of Shakespeare for instance. Thus in Measure for Measure Claudio says of his wife Julia: “upon a true contract/ I got possession of Julietta’s bed/ You know the lady. She is fast my wife/ Save that we do the denunciation lack/ Of outward order. This we came not to.” In other words they are married, he says, notwithstanding that a religious service has not been performed and everyone knows and accepts it.
11 The third argument advanced by the opponents of change is that marriage is for the propagation of children and as same sex couples cannot by definition meet this requirement marriage cannot apply to them. While that might be an acceptable proposition among strict adherents to Thomist natural law philosophy, even the theologians who put together the Anglican service of marriage in the Book of Common Prayer in the sixteenth century were not prepared to wear it. They recognised that this was only one of the bases of marriage and not even simply for the propagation of children as an act in itself but so that children ‘might be brought up in the fear and nurture of the Lord’. They also adduced two other reasons. The first is as ‘a remedy against sin and to avoid fornication so that such persons as be married might live chastely in matrimony’. The second is ‘for the mutual society, help and comfort that one ought to have of the other’.
12 As far as we are aware this remains the orthodox Christian view of marriage in both Protestant and Catholic theology and we are at a loss to understand the continuing opposition of some church authorities to the extension of marriage to same sex couples in those circumstances. No Christian church requires childless couples (who might in any event adopt children who might also be brought up in the fear and nurture of the Lord) to separate or dissolve their marriage on the grounds that they have failed to fulfil a purpose of marriage. Nor, similarly as far as we are aware, do those who oppose single sex marriage for theological reasons consider that the discouragement of promiscuity or the extension of mutual support in relationships should not apply to same sex couples. These remain perfectly valid theological grounds for contracting a marriage regardless of the gender of the couple involved and whether or not they can propagate children – which in the case of a lesbian same sex relationship the parties can achieve anyway by one of several available forms of artificial insemination.
13 The view has also been advanced that there is no need for this change because there is already provision for such unions in the Civil Unions Act. But this beside the point. Our civil union legislation – possibly uniquely internationally – is available to both opposite-sex and same-sex couples and can therefore continue as an option after any changes are made to the Marriage Act, specifically because it does not discriminate on the grounds of sexual orientation. The current Marriage Act does so discriminate and this is the principal basis of the proposed amendment. We note with some amusement that many of those opposed to this proposed change also vigorously opposed the civil union option, but now defend it as making the change in the Marriage Act unnecessary. The Committee might like to question this significant change of mind if opponents of this Bill on these grounds appear before them. We suspect that they have not changed their minds and are engaged rather in a rear guard action against the decriminalisation of homosexuality.
14 Some opponents of change have done so on the grounds that this is single sex couple adoption by stealth¬. We would simply remark that there is nothing stealthy about what is likely to happen in the field of adoption if this amendment is passed. There will no longer be any impediment to such adoption and we would expect an amendment to the Adoption Act to follow promptly if one is needed at all. We note that there is a Private Member’s Bill to that effect pending which we hope will also pass. We would applaud that outcome. Almost all legislators and most citizens are agreed that the Adoption Act, now almost sixty years old and framed for a very different society to that which New Zealand has become in 2012, is sorely in need of amendment or even whole scale replacement. One of its most glaring anomalies is the prohibition on same sex couple adoption. If that anomaly can be rectified in this context then so much the better. We think most people understand that and will not be surprised if it happens as a result.
15 Another approach which has failed so far to generate much traction is the call from New Zealand First leader Winston Peters for a referendum on the issue on the grounds that this is a matter of public morality. We are puzzled by this proposition which seems to us to be confused. It is not entirely clear what is meant by the expression ‘public morality’ but to the extent that such a thing exists surely the arguments are in favour of same sex marriage on such grounds e.g. that to argue against it is to abrogate human rights, which most certainly are a matter of public morality and recognised as such in current law. But apart from that this is rather, we would have thought, in this specific context, a matter of private morality, which is to say that if two individuals of the same gender wish to formally mark their relationship with a marriage ceremony then that is nobody’s business but their own and it is incumbent on the state to step out of such matters, which is what this Bill purposes. As sometime Canadian Prime Minister Pierre Trudeau once remarked: “The state has no business in the adult bedrooms of the nation.” We concur heartily with that sentiment.
16 But beyond that it has long been recognised that matters of morality cannot be resolved by counting heads, and referenda or plebiscites have notoriously been used by some very unpleasant regimes as a device for claiming legitimacy for their actions when all other arguments fail. We would draw to the attention of those who support this approach the outcome of the 1939 German plebiscite which delivered massive majority support for the Nazi regime. Did this legitimate the Nuremberg Laws? Most people would say not. Calls for a referendum on the marriage issue are a simple non sequiter.
17 Finally there is the argument that marriage is for families and these may only comprise heterosexual couples which is the right and proper context for raising children. This is a conclusion entirely unsupported by properly conducted and peer reviewed science-based research. It would therefore be most interesting to know from what source or by what authority this statement is made or where it is written that this relationship alone constitutes a family. As the Families Commission has reminded us in their recent report New Zealand Families Today families take many forms and while a married heterosexual couple living with their statistical 1.7 children may be the commonest current form of a family relationship it is by no means the majority grouping when it comes to families in this society either now or historically. Families come in a very wide variety of guises, and most of them provide an excellent basis for raising children in a loving and nurturing environment. The gender of the couple concerned makes no difference to that.
18 I should also add that from a personal point of view I consider it to be both impertinent and insulting to be told that I am not part of a family. My family has been living in the midst of a strong family nexus in this country for five generations. Although I am no longer married I have a long term relationship with a person of the same sex who is accepted in that role by my blood relatives and my friends. We maintain a cordial relationship with my ex wife and I have two sons, and a daughter in law. I had until the regrettable decease of two of them, three brothers, and I have ten nieces and nephews, and a number of great nieces and nephews. I expect in the fullness of time to become a grandfather. Who dares in those circumstances to say that I am not a part of a family and because of that I might not avail myself of the right to marry my partner if I so choose and he agrees?
Tony Simpson for and on behalf of Rainbow Wellington Rainbow Wellington - 15th November 2012