Society for Promotion of Community Standards Petitions Attorney General on Marriage Amendment Bill

Open Petition to Attorney-General from Society for Promotion of Community Standards Inc. (“SPCS”)

Attention

Attorney-General

Parliament Buildings

Wellington

22 March 2013

Dear Sir,

We contend that under section 7 of the Bill of Rights Act 1990 you have a legal (and moral) duty to report to Parliament that certain provisions in the Marriage (Definition of Marriage) Bill are inconsistent with this Act. In particular the attempt to insert into the Marriage Act 1955 a definition of marriage that would allow same-sex couples to obtain a marriage licence and get married by a marriage celebrant and significant changes to the bill made by the Government Administration Committee that would see the terms “husband” and “wife” removed from a number of pieces of related legislation. These provisions discriminate against married (heterosexual) couples by the deeply flawed attempt to bring together (heterosexual) marriage and same-sex marriage (SSM) in law, under the same category of relationship (marriage), ignoring the fundamental differences between them. The fundamental freedom and human rights of married heterosexual couples (and their natural families) to be recognised and treated by the State as a distinct relationship category, based on the widely accepted and universal understanding of marriage such as that found in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICPR), is negated when the SSM is merged in law with traditional marriage. We contend there is no justification for this discrimination against married couples. Same-sex marriage (SSM) is an oxymoron*. In contrast (heterosexual) traditional marriage involving a husband and a wife, is an institution the State is duty-bound by international agreements to uphold and protect. It derives its real and unique meaning based on the biological fact that the human species is defined by the complementarity and interdependence of the two sexes, a union of opposites (male and female) drawn together by a commitment based on love, and the ideal basis (potentially) for procreation and providing the ideal two-parent relationship context in which to found a natural family. Parliament has no right to approve a bill which is based on the oxymoron* “same-sex marriage”.

Petitioners on behalf of SPCS:

David Lane (Executive Director)

John Mills (President)

Anthony de Vries (Committee member)

Tony McCall (Committee member)

Society for Promotion of Community Standards Inc. P.O. Box 13-683 Johnsonville 6440

(*Oxymoron: A figure of speech in which incongruous or seemingly contradictory terms appear side by side)

Background to Petition:

Introduction

On 10 December 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) which sets out 30 articles or statements about human rights and freedoms.

While not a treaty itself, UDHR was explicitly adopted for the purpose of defining the meaning of the words “fundamental freedoms” and “human rights” appearing in the United Nations Charter which is binding on all member states, including New Zealand. For this reason UDHR is a fundamental constitutive document of the United Nations.

The term “marriage” found in the New Zealand Marriage Act 1955 (“the Principal Act”) is not specifically defined in the Act, nor is it specifically defined in UDHR. Why not? Clearly, because marriage has been universally understood throughout history and across all cultures to be an exclusive intimate relationship involving a man and a woman that is oriented towards procreation (“the natural family” UDHR).

In 2004 the Australian Federal Government passed the Marriage Amendment Act 2004 to incorporate the common law definition of marriage into the Marriage Act 1961 and the Family Law Act, thereby clarifying the meaning of the term “marriage” (Note: effectively making it thoroughly consistent with references to marriage in UDHR and in the International Covenant on Civil and Political Rights (ICCPR)):

Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.

This is consistent with the universally held understanding of marriage, but is a definition currently rejected by the majority of our New Zealand MPs.

Green MP Louisa Wall’s Private Member’s Bill – the Marriage (Definition of Marriage) Amendment Bill – which will soon be the subject of a Third Reading in the New Zealand Parliament, must be struck down by the Attorney-General for being in breach of the New Zealand Bill of Rights (1990) (see later discussion) and on the basis that Parliament cannot be engaged in enacting a law that is meaningless. “Same-sex marriage” (SSM) is an oxymoron. The bill seeks to amend the Principal Act by inserting a definition of marriage as being “between two persons, regardless of their sex, sexual orientation or gender identity”. However, to do so, would render the universally held traditional concept of marriage meaningless and undermine the rights of adoptive children to have (ideally) both a mother and a father (the bill is designed to necessitate radical changes to our Adoption Act 1955).

Marriage Act 1995 found not discriminatory

Three New Zealand lesbian couples made application to the High Court for a declaration that they could marry as same-sex couples under our Marriage Act 1995, claiming it was discriminatory against same-sex couples in denying them a marriage licence. The High Court refused their application on 28 May 1996. It held that the language of the Marriage Act 1955 was unequivocal in pointing to marriage as an institution between a man and a woman only (see for example Schedule 2 of the Act and Section 31 – dealing with marriage solemnisation and marriage vows).

The six lesbians then went on to appeal the High Court decision. On 17 December 1997 the Court of Appeal affirmed the High Court decision, with the majority opinion delivered by Tipping J. holding that the law was not discriminatory in its restrictive interpretation of marriage (Quilter v Attorney-General [1998]). The ruling confirmed that the Act expressed the intention of Parliament at the time – that marriage involves a man and a woman.

Two of the lesbian couples took their grievances of claimed discrimination to the United Nations Human Rights Committee. In a decision dated 17 July 2002, it rejected their case and their allegations of discrimination.

Drawing on the scheme and text of the ICCPR, the Committee’s prior jurisprudence, the travaux preparations and scholarly writing, Justice Keith, representing the views of the majority of the Court of Appeal, found no support for the proposition that a limitation of marriage to a man and a woman violated the ICCPR, in particular article 26 (right to non-discrimination). The Committee agreed with the State (represented by Keith J.) that the gender specific language of article 23(2) of ICCPR, as compared to the gender neutral language in the rest of the ICCPR had been “consistently and uniformly understood as indicating that the treaty obligation of State parties [including New Zealand] stemming from article 23, paragraph 2 of the Covenant is to recognise as marriage only the union between a man and a woman wishing to marry each other” [Emphasis added]. Therefore the Committee found that in merely refusing to allow homosexual couples to marry, the State [New Zealand] had not violated article 26 (or any of the other articles raised by the applicants).

The Human Rights Commission

It is noteworthy that in 1993 the New Zealand Parliament amended the Human Rights Commission Act 1977 to outlaw discrimination on a wider variety of grounds, including sexual orientation. However, more importantly, the non-discrimination provisions in the Human Rights Act 1993 were not amended to cover marriage.

Section 19 of the New Zealand Bill of Rights 1990 [BOR] (“Freedom from Discrimination”) appealed to by the lawyers acting for lesbians in the Quilter case, “is subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (section 5 “Justified Limitation”). S. 5 is incorporated into S. 20L 2(b) of the Human Rights Act 1990 [HRA]. The Court of Appeal recognised that the State’s limiting of marriage to a man and a woman does constitute “justified discrimination” (demonstrably justified under HRA and BOR).

The Human Rights Commission was established by the Human Rights Commission Act 1977. It is empowered under the Human Rights Act to protect human rights in general accordance with United Nations Covenants and Conventions and has a range of functions and powers in order to do this.

The Human Rights Amendment Act 2001 made several significant changes to the functions and powers of the Commission. A new section 5 of the principal Act restates, with changes, the functions and powers of the Commission.

The Human Rights Commission cannot issue guidance or directives to our Parliament that is not accordance with United Nations Covenants and Conventions. In championing the claimed “rights” of same-sex couples to obtain marriage licences the Commission has failed to uphold the UDHR and ICCPR to which New Zealand is a signatory and discriminated against heterosexual married couples who do not wish to be lumped together in law with those involved in the oxymoron SSM.

Marriage in the Universal Declaration of Human Rights (UDHR)

Marriage is mentioned as a human right in the following broad terms in Article 16 of the UDHR. In summary:

(1) Men and women of full age have the right to marry and found a family but only with the free and full consent of both partners.

(2) Marriage, motherhood and all children are entitled to protection by society.

Article 16 (1-3) states (italics):

(1) “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

(“Men and women … have the right to marry”) assumes the marriage of man and woman to be the social norm, thereby discounting homosexual relationships, polygamous societies or societies which do not recognise the institution of marriage. Likewise, the UDHR in declaring that “The family is the natural and fundamental group of society”, fails deliberately to embrace alternatives such as extended family or tribal structures.

The principle of equal rights/non-discrimination (“without any limitation”) has been interpreted correctly by UN treaty bodies and numerous inter-governmental human rights bodies as prohibiting discrimination against any person of full age wishing to marry, “due to race, gender, nationality or religion”. (Note: neither sex, sexual orientation or gender identity are mentioned here). However, it is not an absolute right for a woman of full age to marry any man, or alternatively a man of full age to marry any woman. For example, marriage involving a man and a woman, must be based on “the free and full consent of the intending spouses”. Prohibited marriages involving a man and a woman are set out in Schedule 2 of our Principal Act.

It is wrong in law, based on so-called “human rights” arguments, to suggest that the “without any limitation” principle in the UDHR must (by ‘legal extension’) also apply to the “sex, sexual orientation or gender identity” of the two persons seeking to get married, as argued by proponents of Louisa Wall’s Marriage (Marriage Definition) Bill. Clause 16 of the UDHR is premised on the clear understanding that marriage must involve a man and a woman (two persons of opposite sex) and the relationship is orientated towards the founding of a family.

It is marriage understood as defined by one woman and one man, not ‘marriage’ involving two men or two women, that is “entitled to protection by society and the State” under the UDHR, because it is from the former, not the later, that the family as “the natural and fundamental group unit of society” can potentially arise. A same-sex couple can never produce a child between them. This does not mean that society or the State has any right to not provide protection for such relationships if it is deemed necessary. It just means that society and the State are directed by the UDHR to recognise the unique and special contribution and benefit of traditional (heterosexual) marriage to society – via procreation and the nurturing and care of children by a mother and father – and safeguard the integrity of this institution which serves the public good well.

The majority of New Zealand MPs have seen fit to give their support so far to the passage of Louisa Wall’s legally flawed bill to its Third Reading stage. Should the bill be passed into law in its present form, defining marriage as “between two people regardless of sex, sexual orientation or gender identity”, the government will be in breach of its international obligations to uphold Section 16 of UDHR which clearly defines the founding of a “natural family” within the context of a (heterosexual) traditional marriage, as entitled to protection by society and the State.

Rather than upholding UDHR the majority of our MPs are moving towards making the definition of marriage meaningless by merging an oxymoron, SSM, with traditional heterosexual marriage (which has real meaning and defines our humanity involving the complementarity and inter-dependence of the two sexes for future survival). The concept of SSM involves a corruption of the concept of marriage itself. For if marriage can be opened to any two persons, as Ms Walls proposes, why should it not be open to two homosexuals who are half-brothers who love each other, and/or two lesbian half-sisters, and/or for that matter, any same-sex couple who are biological siblings? Such unions cannot produce children, so why does Wall’s bill discriminate against them, by defining them as prohibited relationships? She has failed to explain this. Under her bill a young homosexual man is prohibited from marrying the father of his ex-marriage partner. Why such a prohibition? No children can issue from this ‘union’.

If marriage is a “human right” for a same-sex couple, then why is there no hint or suggestion of such a right in UDHR? Governments that try to legislate for such “rights” must first explain the basis for such rights in existing laws. Because this is not possible (consider the outcome of the case Quilter v. Attorney-General [1998]), homosexual “rights” activists have sought to enshrine in law, by way of this flawed bill, a definition of marriage that is contrary to that which undergirds (albeit not explicitly stated) all existing legislation and universally held principles of human rights such as UDHR.

The union of opposite sexes is fundamentally different to the ‘union’ of same-sex couples. For a start, heterosexual unions are oriented (biologically) towards procreation (of course this is not always a possible outcome due to age etc.). Homosexual unions are always sterile from a biological perspective. No life can ever issue from any sexual activity engaged in between same-sex partners. This difference is a matter of fact and an important one to recognise.

A same-sex couple can try and lay claim to the “human right” to access a marriage certificate, but the reality is that their union can only ever be a same-sex union and never a union of opposites (heterosexual). So why do pro- SSM proponents like Louisa Wall insist that heterosexual and same-sex couples must be treated the same in law in terms of marriage, when the two unions are so fundamentally different?

The Civil Unions Act was passed in 2004 so same-sex couples, who marched by the hundreds to support it, could have their long-term relationships recognised in law and obtain every benefit that married heterosexuals had in law. They recognised at the time that “marriage” as available to a heterosexual couple, would not be on offer, and expressed total satisfaction in their gains from the Civil Union Act.

Current law does not define marriage to include SSM, and SSM lobbyists have failed to establish their case that the two ‘forms’ of union warrant being classified as a unity under the classification – “marriage”.

Breaching the Bill of Rights Act 1990 [BOR] – Attorney-General Must Act

S. 19 of BOR states:

Freedom from discrimination

  • (1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. [HRA]
  • (2) 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.

One of the “prohibited grounds of discrimination” specified in S. 21 of the HRA is:

MARITAL STATUS

 

S. 21 (1) (b) marital status, which means being—

· (i) single; or

· (ii) married, in a civil union, or in a de facto relationship

 

Enacting a piece of flawed legislation – The Marriage [Definition of Marriage) Amendment Bill - that will have the effect of negating the rights of persons who already qualify as married under the Marriage Act 1955 (the Principal Act) to be treated in law differently from those who do not qualify as a married persons under this Act; constitutes an act of discrimination.

Amending the Principal Act to change the universally accepted definition of marriage, constitutes an act of discrimination against such married persons who qualify as married under the Principal Act. At the very least it constitutes “Indirect Discrimination” under s. 65 of HRA.

This proposed amendment to the Principal Act cannot be justified under s. 19(2) of BOR because a Court of Appeal ruling (Quilter v. Attorney-General [1998]) has already determined that the Principal Act does not discriminate against same-sex couples in relation to the issuing of marriage certificates.

Amending the Marriage Act 1955 to include SSM in a radical new definition of marriage, constitutes a serious limitation on the freedoms of those who entered this state-sanctioned institution on the basis that the term “marriage” was understood in law to only involve a man and a woman. Such a legal change is deeply offensive and insulting to many married people and is a breach of our State’s duty to uphold and preserve “only the union between a man and a woman wishing to marry each other” (article 23(2) of ICCPR) and safeguard the integrity of the “natural family” (article 16[3] UDHR).

Defining marriage as proposed in Louisa Wall’s deeply flawed bill constitutes unjustified discrimination against married heterosexual couples, as it lumps them all with same-sex ‘married’ couples under a newly devised category in law “marriage” which is anathema to many of them and will no doubt have many unintended negative consequences in law that flow from this category error. Thousands of New Zealanders have made this point in written and oral submissions made to the Government Administration Committee that considered this bill, including the Society (SPCS).

See: http://www.spcs.org.nz/2012/submission-on-the-marriage-amendment-bill/

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