New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 15 April 2015
THE STATE OF MARRIAGE
In 1996 the legal regimes in many nations confronted the issue of same-sex marriage. In May the High Court of New Zealand/Aotearoa rendered Quilter v Attorney-General1 and declined to find that the female plaintiffs were entitled to obtain a marriage licence and marry. Although the applicable act, the Marriage Act of 1955, does not explicitly prohibit same-sex marriages or explicitly require male-female marriages, the Court concluded that "it must be Parliament which chooses to enact the necessary law."2 A few months later, the legislative body of the United States did enact a law on the subject, the Defense of Marriage Act (DOMA).3 This federal law does not permit same-sex marriage, but instead provides that states need not recognise same-sex marriages of other states4 and that the federal government will only recognise marriages between members of "the opposite sex." DOMA itself is a reaction to a ruling by the Hawai'i Supreme Court in Baehr v Lewin,5 holding that the denial of a marriage license to a same-sex couple must be evaluated under the Hawaii state constitution's equal protection clause which
Professor of Law, City University of New York School of Law, United States. The author wishes to thank Nan Seuffert for her encouragement and patience, the anonymous referees for the New Zealand Yearbook of Jurisprudence for their comments, and CUNY School of Law students Julian Kahuna White and Jana Jacobson for their research assistance.  NZFLR 481. The six plaintiffs were three female couples who had applied to the Registrar General for marriage licenses and been denied.
2 Ibid, 505.
3 PL 104-199, 110 Stat 2419 to be codified at 28 USC §1738C.
4 Ibid.The statute provides:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
5 852 P2d 44 (Haw 1993).
ii Yearbook of New Zealand Jurisprudence Vol 1.
Analysing the law in the context in which it is made and applied has been integral to feminist analyses of the laws relevant to rape trials, and to reforms necessary to those laws to facilitate rape victims' participation in court processes without revictimisation. Elisabeth McDonald's article provides the results of the most recent New Zealand research on women's experiences of the legal system as rape victims. The women who reported the most problems with participating in the court process were those who were allegedly raped by someone they knew. Thus the crucial distinction in terms of women's experiences is not between those who give evidence in court and those who do not, but rather between those who allege rape by a stranger and those who allege rape by an acquaintance. This distinction carries a chilling resonance with the legal system's response to domestic violence, where it has often been noted that violence perpetrated on a stranger is more likely to be dealt with through appropriate sanctions than violence perpetrated on a family member.
McDonald's interdisciplinary approach to analysing the law in context utilises both social science and legal research to assess the interaction of court processes and women's experiences. Nan Seuffert's article addresses epistemological issues underpinning the production of knowledge in both law and the social sciences which are crucial to developing a bicultural analysis of law in context. Eurocentric epistemologies have been thoroughly critiqued for the production and legitimation of knowledges which, through false claims to universality and objectivity, reinscribe dominant perspectives in the production of knowledge in law and the social sciences. Developing bicultural research methods to facilitate the bicultural redesign of laws and institutions requires deconstructing false claims to objectivity and universality and situating knowledge. Recognition of the locations from which knowledge is produced focusses attention on the limitations and specificities of that knowledge; the contexts in which knowledge is produced are an integral part of the knowledge. Bringing the School of Law's project full circle, this approach shifts attention from analysing the law and the contexts in which it is made and applied as distinct concepts, to analysing law and context as mutually reproductive.
12 November 1997