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New Zealand Human Rights Commission Submissions |
Last Updated: 27 June 2015
HUMAN RIGHTS COMMISSION
SUBMISSION ON THE
MARRIAGE (DEFINITION OF MARRIAGE) AMENDMENT BILL
Government Administration Committee
26 October 2012
Contact person: Sylvia Bell
(09)3062650
1. Introduction
1.1 The Human Rights Commission (Commission) welcomes the opportunity to comment on the Marriage (Definition of Marriage) Amendment Bill (the Bill).
1.2 The Bill would amend the Marriage Act 1955 (the principal Act) to ensure that marriage refers to a union of 2 people regardless of their sexual orientation or gender identity.
1.3 As the Bill’s Explanatory Note states:
Marriage as a social institution is a fundamental human right and limiting that right to one group in society only does not allow for equality. This Bill will ensure that there is equality for people wishing to marry regardless of their sex, sexual orientation or gender identity...
1.4 The Commission agrees with this. Same-sex couples and transgender people should be able to have their commitment to each other recognised publicly in the same way as heterosexual couples.
1.5 Since the Bill was drawn from the ballot, there has been a debate in the media and on talk back shows about the implications of same sex marriage and the flow-on effect to other areas of life. The discussion has ranged from whether a Minister of a particular faith will be required to marry same-sex couples in contravention of his or her religious belief to the question of adoption and the use of church premises by same-sex couples.
1.6 The Commission considers that this submission is not the opportunity to endorse or refute certain positions with one exception - the balance between the right not to be discriminated against and the right to manifest one’s religious belief.
2.1 The Commission’s submission deals with:
➢ the status quo and discrimination;
➢ the international standards and the position internationally;
➢ the impact on transgender people;
➢ balancing the right to freedom of religion and right to freedom from discrimination;
➢ religious belief and the need for an exemption.
3. Whether the status quo amounts to discrimination
3.1 The Human Rights Act 1993 (the HRA) makes it unlawful to discriminate on certain grounds, including sex[1] and sexual orientation. Discrimination itself is not defined in the HRA. Rather the HRA refers to treating people less favourably than others because of a prohibited ground. It follows that differentiation (and resulting disadvantage) is the key to identifying unlawful behaviour.[2]
3.2 The Commission considers that the effect of the Marriage Act 1955 as presently worded discriminates against people by reason of their sex or sexual orientation. This is because same-sex couples cannot marry. They can have a civil union but this is not the same as being married. In contrast, heterosexual couples can either marry or have a civil union.
3.3 The Commission does not consider that access to a civil union provides same-sex couples with full equality. We agree with the position of the Australian Human Rights Commission that, in the absence of a right to civil marriage for same-sex couples, the civil union structure simply continues to reinforce the different value placed on relationships between opposite-sex and same sex-couples[3].
3.4 Given that same-sex couples do not have the option of marrying, they are not treated equally and disadvantaged as a result. In our view therefore the effect of the Marriage Act 1955 at present amounts to prima facie discrimination.
3.5 The HRA applies to both the public and private sectors. As this situation is an “an act done by the legislative branch” it falls within Part 1A of the HRA as “
3.6 The test for discrimination that applies to Part 1A is the test in the New Zealand Bill of Rights Act 1990 (NZBORA). That is, once prima facie discrimination has been established, then for it to breach Part 1A the limit on the rights must be unable to be justified in a free and democratic society. That is, satisfy the test in s.5 of the NZBORA. In deciding whether this is the case, the following issues will be taken into account:[4]
➢ whether the limiting measure serves a purpose sufficiently important to justify curtailment of the right or freedom;
➢ if so, is the measure is rationally connected with its purpose;
➢ impairs the right or freedom no more than is reasonably necessary to achieve its purpose; and
- ➢ proportional to the importance of the objective
3.7 The Commission finds it difficult to understand what purpose could be sufficiently important to justify preventing same-sex couples marrying.
3.8 In the only case where the implications of the Marriage Act for same-sex couples has been considered in New Zealand – Quilter v Attorney-General[5] - Gault J noted that “justification for differences will be found in social policy resting on community values”[6]. Different treatment could be justified because marriage, as conventionally understood, should be ruled “unjustifiable only by the legislature because of the social policy implications”.
3.9 Such an approach suggests that community values are static. This is incorrect. Attitudes evolve and change over time. For example, at one time women were not recognised as “persons” for the purpose of standing for public office[7] - it would be a bold person who would make claim that today.
3.10 In Canada, the Supreme Court dismissed the argument that the common law definition of marriage was entrenched, noting that:
... the “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life[8].
And in South Africa the Constitutional Court has observed that:
...rights by their nature will atrophy if they are frozen. As the conditions of humanity alter and as ideas of justice and equity evolve, so do concepts of rights take on new texture and meaning. The horizon of rights is as limitless as the hopes and expectations of humanity. What was regarded by the law as just yesterday is condemned as unjust today[9].
3.11 The Commission considers that the prohibition against same-sex marriage is outdated for similar reasons.
3.12 Attitudes are changing both internationally[10] and domestically. Over the past 25 years New Zealand has moved from a society where homosexual activity was illegal to one which promotes tolerance and understanding by respecting the diversity of individuals of all sexual orientations, and increasingly, diverse gender identities. Domestic legislation has progressed from the decriminalisation of homosexuality to positive protection from discrimination on the grounds of sexual orientation[11]. In the past five years, this has included many aspects of partnership recognition. What the Bill is proposing is simply the next logical step.
3.13 The Commission considers that the effect of the Marriage Act 1955 is to discriminate against people by reason of their sex and/or sexual orientation and cannot be justified in terms of s.5 of the NZBORA.
4.1 Equality is fundamental to the human rights framework. Article 26 of the International Covenant on Civil and Political Rights (ICCPR) states that “all people are equal before the law and entitled without any discrimination to the equal protection of the law.” In addition, Article 2 of the ICCPR requires States Parties to ensure everyone is able to enjoy the rights set out in the ICCPR without discrimination.
4.2 Art.26 is wider than Art.2(1) because it is a “stand alone” right which forbids discrimination in any law and in any field regulated by public authorities, even if those laws do not relate to a right mentioned in the ICCPR.[12] The wording of Art.26 indicates that the law must not only be enforced equally (the right to equality before the law) but also that there is an obligation on State Parties to both prohibit discrimination and also take action to protect against discrimination (the right to equal protection of the law).[13]
4.3 Art.26 of ICCPR does not specifically refer to “sexual orientation” or ‘”sexuality” in the prohibited grounds of discrimination but the phrase “other status” has been interpreted to include “sexual orientation”[14]. The UN Human Rights Committee has also emphasised the obligation of all States that have committed to the ICCPR to provide “effective protection” against discrimination based on sexual orientation.
4.4 There have been very few complaints about the legality of same-sex marriage considered at by the international courts and those cases that there have been suggest that, while the ICCPR does not prevent the recognition of same-sex marriage, it does not impose a positive obligation on States to do so.
4.5 The Human Rights Committee has only considered the issue once and then, ironically, in relation to a complaint from New Zealand. In Joslin v New Zealand[15]the authors unsuccessfully argued that the Marriage Act 1955 discriminated against them by reason of their sexual orientation. The Human Rights Committee found that the mere refusal to provide for marriage between homosexual couples did not violate the right to marry under Art. 23(2).
4.6 Despite the outcome in Joslin, it is worth noting that the complaint was considered under Art.23(2) – the only article in the Convention that refers to “men and women” rather than, for example, “ persons” - a fact that some would say dictated the final outcome[16].
4.7 Two members of the Court - even though they agreed with the final decision – dissented on the issue of discrimination finding that an argument could be made that the effect of the Marriage Act 1955 violated Art.26 as discrimination against same-sex couples in some situations, commenting that[17]:
... [Although] the Committee has held that certain differences in the treatment of married couples and unmarried heterosexual couples were based on reasonable and objective criteria and hence not discriminatory, the rationale of this approach was in the ability of the couples in question to choose whether to marry or not to marry, with all the entailing consequences. No such possibility of choice exists for same-sex couples in countries where the law does not allow for same-sex marriage or other type of recognized same-sex partnership with consequences similar to or identical with those of marriage. Therefore, a denial of certain rights or benefits to same-sex couples that are available to married couples may amount to discrimination prohibited under article 26, unless otherwise justified on reasonable and objective criteria.
It would seem to follow that if the authors had provided evidence that they were deprived of certain benefits as a result of not being able to marry they may have been successful in a discrimination claim.
4.8 Since the decision in Joslin there have been changes in social attitudes. Many more countries now recognise same-sex marriage. The Courts, too, are adopting a different approach. The Constitutional Court of South Africa in Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs (Fourie)[18]and the Ontario and British Columbia Courts of Appeal in Halpern v Canada(A-G)[19]and Barbeau v British Columbia(A-G)[20]all declined to adopt the approach of the Human Rights Committee in Joslin.
4.9 This is consistent with the stated view of the Human Rights Committee that interpretation of the guarantees in the ICCPR evolves over time in view of the its text and purpose[21].
4.10 In the Commission’s opinion recognition of same-sex marriage is more consistent with the purpose of a universal human rights regime – that is, the protection of human dignity and equal value of all people.
5.1 Recognition of same-sex relationships for the purposes of marriage could also have implications for transgender people.
5.2 In 2008 the Human Rights Commission carried out an inquiry into the discrimination experienced by transgender people. To Be Who I Am[22]revealed the extent of discrimination faced by transgender people on a daily basis and made a number of proposals to ensure that transgender people would be able to equally enjoy the rights that most others take for granted.
5.3 A number of transgender women had asked the Inquiry to consider issues relating to the legal status of their marriages. They had been married for many years and while married had transitioned from male to female. A number were now living as women and wished to have their birth certificates amended accordingly. This was not possible while they still remained married.
5.4 These transgender women said they were constrained from altering the sex details on their birth certificates because two persons of the same sex are not permitted to marry under New Zealand law. A legal change of sex was not possible while they were still legally married, with the result that they were effectively required to dissolve their marriage. They considered this an affront to their dignity and did not believe that this was warranted given that the parties to the marriage relationship were the same two people who were married in the first place.
5.5 Some transgender people considered a civil union to be of a lesser status than marriage. Others believed that civil unions offered transgender people more options for legal recognition of their sex and gender identity. This was because civil unions are permitted between persons of the same or different sexes so if a person changes the sex on their birth certificate their civil union is not affected.
5.6 At present a transgender person has to either dissolve their marriage or change it to a civil union if they wish to remain in some sort of official relationship. There are also restrictions on whether a transgender person who has changed their sex details on their birth certificate is able to marry as that sex. The Commission recommends a consequential amendment should be made to the Births, Deaths, Marriages and Relationships Registration Act if the Bill becomes law.
5.7 Deleting section 30(2) of the Births, Deaths, Marriages and Relationships Registration Act would ensure that transgender people were able to enjoy official recognition of their relationships in the same way as everyone else.
6.1 The most contentious issue raised by the Bill relates to the possibility that people qualified to act as celebrants could be forced to marry same sex couples when same–sex marriage is contrary to their religious beliefs. Thus, the conflict is between the right to religious belief[23] and the right to be free from discrimination on the ground of sex or sexual orientation.
6.2 While this issue has not been litigated in New Zealand, it has arisen in other jurisdictions. In Reference re Same-Sex Marriage[24]the Supreme Court of Canada stated that the recognition of the rights of one group (e.g. the legalization of same-sex marriage) cannot, in itself, violate the rights of another (e.g. religious groups who do not recognize the right of persons of the same sex to marry) unless there is an actual impact on the rights of another (e.g. religious officials being asked to perform same-sex marriages). In other words there is no conflict unless there is an actual intrusion on other rights. Merely speculating that a violation may occur is not enough. There must be evidence not just an unsupported assumption that the enjoyment of one right will impact on another.
6.3 The Supreme Court did, however, explicitly state that compelling religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion and, absent exceptional circumstances, would not able to be justified under s.1 of the Canadian Charter (which is essentially the same as the s.5 test in the NZBORA)
6.4 The Commission agrees with this. Supporting marriage equality does not undermine the right to manifest religious belief. As Sachs J. noted in Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs (Fourie)[25]:
The constitutional claims of same-sex couples can accordingly not be negated by invoking the rights of believers to have their religious freedom respected. The two sets of interests do not collide, they co-exist in a constitutional realm based on accommodation of diversity.
6.5 In our view the situation would only amount to a conflict if celebrants were obliged to perform a marriage for same-sex couples as a matter of law. The current statutory framework (which we address below) provides a mechanism for reconciling the right to religious belief and the right not to be discriminated against.
7.1 Those who consider that a celebrant who refuses to perform a marriage for a same sex couple because of his or her religious convictions will be in breach of the Human Rights Act, do so on the assumption that s.29 of the Marriage Act 1955 will not protect the celebrant.
7.2 They reach this conclusion by assuming that, because marriage celebrants are authorised by the State under the Marriage Act 1955 to officiate at a marriage ceremony, they are carrying out a public function for the purposes of s.3(b) NZBORA. They therefore fall within Part 1A of the HRA. It would follow that refusing to marry someone because of their sexual orientation will amount to discrimination under s.19 unless it can be justified under s.5.
7.3 This view is based on the assumption that that carrying out a marriage ceremony is “the performance of a public function conferred or imposed pursuant to law”. The Commission does not see it that way. The Marriage Act 1955 does not impose a statutory function. It merely validates a person’s ability to perform the ceremony.
7.4 As Randerson J. stated in Ransfield v The Radio Network Ltd [26](which is still considered to be the leading judgment on the meaning of public function in s.3(b) of the NZBORA):
In a broad sense, the issue is how closely the particular function, power or duty is connected to or identified with the exercise of powers and responsibilities of the State. Is it “governmental” in nature or is it essentially of a private character?
7.5 It is difficult to see the celebration of a marriage as a government activity. The Commission therefore considers that the role of marriage celebrant falls within Part 2 of the HRA as a private function and s.29 applies by reason of s.21B(1) which states that:
...an act or omission of any person or body is not unlawful under this Part if that act or omission of any person or body is authorised or required by an enactment or otherwise by law.
7.6 As section 29 of the Marriage Act states that:
A marriage license shall authorise but not oblige any marriage celebrant to solemnise the marriage to which it relates.
It follows that a marriage celebrant has the option of not marrying a same sex couple if they have strong religious or moral objections even if it amounts to discrimination on the ground of sexual orientation.
7.7 The Commission considers that section 29 is permissive only and there is no statutory obligation on a registered celebrant to carry out a marriage ceremony. It follows that amending the Marriage Act 1955 in the manner proposed will not oblige a person to marry a same-sex couple if it is against the celebrant’s religious or moral scruples because they will be able to invoke s.29.
8.1 If it is considered that a celebrant is carrying out a public function for the purposes of Part 1A - and section 29 of the Marriage Act 1955 does not apply - a refusal by a celebrant to conduct a marriage ceremony would amount to prima facie discrimination subject to the s.5 justification.
8.2 We cannot see how a refusal by a church or other religious organisation to conduct a same-sex marriage in order to comply with the tenets of its religion or the strongly held views of its adherents would not be justified. While it may be more difficult to justify a decision not to marry a same-sex couple simply because of a celebrant’s strongly held moral convictions about same-sex relationships, it would not be impossible given the almost sacrosanct nature of the right to freedom of thought, conscience and religious belief in s.13 NZBORA, a right which has been described as “absolute”[27] .
8.3 It has been suggested that even though a Court would be unlikely to find that a religious official’s reluctance to marry a couple because it contravened his or her religious belief was not able to be justified, the inclusion of a specific exemption in the Marriage Act 1955 could save time and the expense of litigation.
8.4 In Canada for example, the Civil Marriage Act 2005 includes the following exemption for religious officials:
It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.
As well as the following “avoidance of doubt” provision relating to freedom of conscience and religion and expression of beliefs:
For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.
8.5 Including such an exemption in the Marriage Act 1955 would not resolve the difficulty in relation to the distinction between Part 1A and Part 2 of the HRA. If a marriage celebrant’s activities are deemed to fall within Part 2, then he or she is able to refuse to perform the ceremony because of s.29. If they fall within Part 1A, then the celebrant’s views should be able to withstand scrutiny under s.5. We cannot see, therefore, why any further protective measures would be required or could be justified.
9.1 The Commission supports the Bill. It considers that same-sex couples and transgender people should have the same options for official recognition of their relationships as all other New Zealanders.
9.2 We do not believe that there will necessarily be a conflict with the right to religious freedom and belief as s.29 of the Marriage Act 1955 allows registered celebrants the option of refusing to solemnise a marriage between a same- sex couple if to do so would go against his or her strongly held religious or moral beliefs.
9.3 The Commission recommends that s.30(2) of the Births, Deaths, Marriages and Relationships Registration Act should be amended to ensure that transgender people can enjoy official recognition of their relationships in the same way as other New Zealanders.
[1] The definition of
“sex” in the HRA has been interpreted by the Attorney General as
including gender identity (and therefore
transgender people) : www.agender.org.nz/articles/items/genderidentitybill/html
[2] Ministry of Health v
Atkinson [2012] NZCA 184 at [para 55]; see also Butler & Butler, The
New Zealand Bill of Rights Act: A Commentary LexisNexis (2005) at 492
[3] Australian Human Rights
Commission, Marriage equality in a changing world: Position paper on marriage
equality at http://www.humanrights.gov.au
[4] R v Hansen [2007] 3
NZLR 1 (SC) at 28
[5] [1997] NZCA 207; [1998] 1 NZLR
523(CA) The Commission recognises that there is a school of thought that
considers that Quilter is authority for the proposition that the Marriage
Act does not discriminate because all persons are treated alike and therefore
the Bill is unnecessary. We believe the decision is problematic for a number of
reasons and should not be taken as a reason for rejecting
the need for change.
[6] Ibid. p 527
[7] Edwards v Attorney-General
for Canada [1929] UKPC 86; [1930] A.C. 124 (PC)
[8] Reference re Same-Sex
Marriage [2004] 3 S.C.R 698, 2004 SCC 79 at 3
[9] Minister of Home Affairs v
Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs (Fourie)
CCT60/04; CCT10/05 [2005] ZACC
19
[10] See, for example, UK
consultation on Equal Marriage at http://www.homeoffice.gov.uk/publicatisns/about-us/consultation/equal-civil-marriage/consultation-document?view=Binary
and in the US the comments by President Obama at
http;//www.abcnews.go.com./blogs/extras.2912.05/09
nightline-daily-line-may-9-president-obama
–interview-abc-exclusive. In
addition a variety of countries now allow for same sex marriage.
[11] For an overview of the
steps towards decriminalisation, see Ministry for Culture and Heritage (n.d)
Homosexual Law Reform in New Zealand updated 4 July 20120 accessible at
http://www.nzhistory.net/culture/homosexual-law-reform
[12]
Human Rights Committee, General Comment No.18: Non-discrimination UN Doc
HRI/GEN/1/Rev.9 (Vol.1) (1989) para
2
[13] Ibid. para 10
[14] Human Rights Committee,
Toonen v Australia Communication No.488/1992, UN Doc CCPR/C/50/D/4588/92
(1994); Human Rights Committee, Young v Australia Communication
No.941/2000, UN Doc CCPR/C/78/D/941/1999(2000)
[15] Human Rights Committee,
Joslin v New Zealand Communication No.902/1999, UN Doc
CCPR/C/75/D/902/1999 (2002)
[16]
There is a considerable divergence of opinion among international legal scholars
on this point. Art.23 for example may be read as
referring to the right of a man
or woman to marry any other person irrespective of their sex. Taken
together Arts.23 and 26 establish same sex marriage as a fundamental human
right: E. Sadtler
A right to Same –Sex Marriage under International
Law: Can it be vindicated in the United States, Virginia Jnl of
International Law, Vol.40, p.405
[17] Individual opinion of
Committee members, Mr Rajsoomer Lallah and Mr Martin Scheinin Appendix p.15
[18] CCT60/04; CCT10/05 [2005]
ZACC 19
[19] [2003] 65 ORD (3d)
161 (CA)
[20] 2003 BCCA 251
[21] Castan Centre for Human
Rights Law, Submission to the Senate Legal and Constitutional Committee
Inquiry into the Marriage Equality Amendment Bill 2010 pp 9-11 at http://www.aph.gov.au/Parliamentary
Business/Committees/Senate_Committees?url=legcon_cette/marriage-equality-2012/submissions
[22] Human Rights Commission,
To be who I am: Report of the Inquiry into Discrimination Experienced by
Transgender People (2008)
[23] Section 13 relates to
freedom of thought, conscience and religion including the right to adopt and
hold opinions without interference.
Section 15 states that everyone has the
right to manifest their religious belief. While the s.13 right must be almost
absolute, s.15
would be subject to the s.5 test. If it was obligatory to perform
a marriage ceremony it would be difficult to justify infringement
of the
right.
[24] [2004] 3 S.C.R 698,
2004 SCC 79
[25] CCT60/04;
CCT10/05 [2005] ZACC at [para
98]
[26] [2005] 1 NZLR
233
[27] Moore DCJ Police v
Razamjoo [2005] DCR 408, para 97 (DC) cited by Butler & Butler in
The New Zealand Bill of Rights Act: A Commentary LexisNexis (2005) at
14.8.1
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