JURIST Guest Columnist Bill Atkin of the Victoria University of Wellington Faculty of Law evaluates the recent legalization of same-sex marriage by the New Zealand House of Representatives…

On April 17, 2013, the New Zealand House of Representatives passed same-sex marriage legislation by 77 votes to 44. Since New Zealand has no upper house or senate, no further vote was necessary. The royal assent, the final step in the process, was given on April 19. The act comes into force four months after the royal assent, providing time for new forms and procedures to be put into place. If the planning for the implementation of the legislation goes especially smoothly, an earlier date for it to come into force may be decreed.

New Zealand decriminalized [PDF] homosexual practices in 1986 and created civil unions in 2004. Civil unions have virtually all the hallmarks of marriage, except that they are available to both opposite-sex and same-sex couples. The 1986 and 2004 reforms were accompanied by passionate campaigns on both sides of the issue, and featured some very militant statements. In 1993, sexual orientation was added to the grounds of unlawful discrimination and in 2001, the law relating to property division on separation and inheritance laws were amended to include “de facto relationships,” the statutory phrase for unmarried cohabitation. “De facto relationships” include same-sex relationships. Interestingly, the 1993 and 2001 changes attracted comparatively little animosity. Same-sex marriage, or “marriage equality,” as proponents call it, is the culmination of this process.

Quite remarkably, and in contrast to the heated debate in France, the law was enacted with very little vigorous protest. The most vocal opposition tended to come from churches and fringe groups outside Parliament: inside Parliament, most of the politicians opposed to the new law spoke against it moderately. Several argued that they supported civil unions and it was therefore unnecessary to change marriage: this only a few years after staunch opposition by many to the civil union legislation. One political party tried unsuccessfully to have the law conditioned upon a referendum.

The Marriage (Definition of Marriage) Amendment Bill was introduced to Parliament on July 26, 2012. It was sponsored by Louisa Wall, an opposition Labour Party Member of Parliament, who is openly lesbian and an indigenous Maori. While it was not a government measure, it had the support of the Prime Minister [John Key] and many members of his National Party. The size of the vote in support of the bill was surprising, but reflects the changing attitudes in New Zealand reflected in many other countries, including the US and the UK, where the Conservative Prime Minister is promoting a change in the marriage law.

The bill inserts into the Marriage Act 1955 a new definition of “marriage,” which now means “the union of two people, regardless of their sex, sexual orientation, or gender identity.” Previously, there was no statutory definition at all, but the Court of Appeal had earlier confirmed that, according to the law as it then existed, marriage involved a man and a woman. That decision is now reversed. Notably, the new definition takes account not just of gay and lesbian persons, but also of transgender people. Until now, it has been necessary for a married person who has a sex change to have the marriage dissolved because it would have become “same-sex.” Under the new law, this is no longer necessary. Along with the new definition of marriage, the “prohibited degrees of marriage,” listed in schedule two of the Marriage Act, have been changed to be gender-neutral. For example, references to “grandfather” and “grandmother” are replaced with “grandparent.”

Following standard legislative practice, the bill was sent to a parliamentary “select committee,” so that the public could make submissions. The committee [PDF] received 21,533 written submissions, a very large number for a country of 4.5 million. However, 18,635 of these were more or less the same in form, either for or against, leaving 2,898 of “unique content.” Many members of the public were given the opportunity to make their submission orally before the committee.

Apart from same-sex marriage, two issues in particular encouraged the committee to act. The New Zealand Adoption Act of 1955 is widely recognized as being antiquated and in need of wholesale reform. Married couples and single persons can adopt. A recent High Court judgment held that heterosexual de facto couples can be included in the phrase “two spouses jointly” but cast doubt on whether it could extend to homosexual de facto couples and civil union couples. Some comments indicated uneasiness about allowing same-sex couples to adopt, but the committee took a different view, noting that many same-sex couples have children and should be able to apply for adoption. This may be desirable, for example, to take account of the part played by a new partner or to regularize parentage following some form of assisted human reproduction. Among other points, the committee thought it absurd that a gay person can adopt alone, even if in a relationship, but a couple cannot do so. The committee added some terminological changes to the Adoption Act to make it clearer that a married couple, irrespective of sexuality, can adopt. The law nevertheless remains highly anomalous because of the uncertainty about civil union and same-sex de facto couples.

The other issue was more fraught: can a marriage celebrant opposed to same-sex marriage refuse as a matter of conscience to officiate at such a wedding? For most, this represents an appeal to freedom of religion. A clash of principles therefore arises: freedom from discrimination versus religious rights.

According to section 29 of the Marriage Act, a marriage license obtained by the parties planning to get married “shall authorise but not oblige any marriage celebrant to solemnize the marriage to which it relates.” Taken literally, this allows a marriage celebrant to refuse to officiate a wedding between two individuals of the same sex. However, legal opinion was divided over whether the section is subject to limitations. The New Zealand Bill of Rights Act 1990, which includes rights relating to non-discrimination and freedom of religion, requires legislation to be interpreted whenever possible consistently with its provisions. No one would accept that section 29 allows a celebrant to discriminate on grounds of race: can the same not be said where a person discriminates on grounds of sexual orientation?

General agreement existed in the committee that people should not be forced to act against their conscience: “It is our intention that the passage of this bill should not impact negatively upon people’s religious freedoms.” So, the committee added a new subsection to section 29. To explain this, we must note three kinds of celebrant: (1) those belonging to one of the ten religions listed in the First Schedule to the Marriage Act, which are mainstream Christian churches and Jewish congregations; (2) those belonging to “approved organisations,” approved by the Registrar-General of Marriages, of which approximately 1,000 exist, mostly but not all religious groups of some sort not covered under (1); and (3) individuals who apply independently to the Registrar-General for approval as celebrants.

The new subsection applies only to the first two categories and not the third. Importantly, it spells out that no obligation to officiate exists if this “would contravene the religious beliefs of the religious body or the religious beliefs or philosophical or humanitarian convictions of the approved organisation.” The wording is significant: the exemption applies not to the individual’s own beliefs or convictions but to those of the church or other body. Where does this leave the clergyperson whose church supports same-sex marriage but who disagrees with that church’s position? The answer is unclear, but that person may end up in contravention of the discrimination laws. What of the clergyperson who belongs to a conservative church but who holds a liberal view on marriage? The Marriage Act does not prevent that person from officiating, but the church concerned may want to take some form of disciplinary action. Will such action contravene the discrimination laws? Another point of uncertainty.

The new subsection does not apply to “independent” celebrants. Prima facie, they cannot invoke their own consciences or convictions. This is arguably the correct result: they do not purport to represent an organisation with certain beliefs, but they do (usually) hold themselves out as offering their services to the public. They ought thus to abide by the law and not discriminate on grounds of sexual orientation.

The question marks over celebrants may prove to be more theoretical than real. Putting them to one side, the law change is a landmark for New Zealand’s family law.

Bill Atkin is Professor of Law at the Victoria University of Wellington in Wellington, New Zealand. An expert on family law, he has served as author or editor on several books on relationship property and family law policy in New Zealand. In addition, he currently serves as General Editor of the International Survey of Family Law and chaired the Ministerial Adoption Practices Review Committee.

Suggested citation: Bill Atkin, Same-Sex Marriage and Family Law Reform in New Zealand, JURIST – Forum, May 10, 2013, http://jurist.org/forum/2013/05/bill-atkin-samesex-marriage.php