ACT on Campus Submission on the Marriage (Definition of Marriage) Amendment Bill

Today, the ACT on Campus Executive submitted to the Government and Administration Select Committee, on behalf of their members, their position on the Marriage (Definition of Marriage) Amendment Bill.

All media and public enquiries to go to the President of ACT on Campus, Hayden Fitzgerald. Contact details can be found on our contacts page.

The submission is contained below:

ACT on Campus Submission on the Marriage (Definition of Marriage) Amendment Bill

Oral Submission

The following submission is in favour of the Marriage (Definition of Marriage) Amendment Bill.

[1] ACT on Campus is an organisation, organised primarily by young people and tertiary-level students who support the party of ACT New Zealand and its vision of an open, progressive, benevolent New Zealand.

[2] ACT and ACT on Campus agree on most issues, but ACT on Campus maintains its independence.

[3] While, in principle, both organisations support the passage of the Marriage (Definition of Marriage) Amendment Bill (the Bill), it is important to note, that the principles and submissions hereafter put forward are the solely the views of the ACT on Campus organisation.

[4] The following principles are those which are held and promoted by ACT on Campus, and are those which are relevant to the issue the Bill addresses. They are:

Equality - All New Zealand citizens are entitled to equal protection of their lives, their rights, and their property, and to protection of the agreements lawfully made by them, by the laws and statutes of this nation.

The Rule of Law - For individuals to live in peace with one another, laws are made by society through the State, and are enforced so that trade, contracts, equity, the non-violent settlement of disputes, and the other benefits of civilisation may all be reasonably possible and accessible.

Individualism - All New Zealanders: should be free to express their personalities and preferences, so long as their choices and actions do not bring or pose serious or direct harm to other individuals; should be able to freely associate for peaceful purposes with groups or individuals; and, should be able to organise their lives in any manner or fashion as they individually deem fit, to peacefully pursue their lawful (or otherwise rightful) desires and goals.

Meaning of Marriage
[5] ACT on Campus understands marriage to be a legal union between two individuals, regardless of gender/sex, and which provides a legal framework for the fair distribution of equity (in the case of divorce, and for the purposes of taxation and social security), protection of property rights (jointly held by both parties), and access to family rights.

[6] The meaning of marriage outside of a legal context varies. For example, there are different religious values that affect a personal meaning of marriage; there are also different (and sometimes swiftly changing) cultural attitudes towards marriage as well.

[7] Such meanings are personal and private, and we believe that these conceptualisations of marriage can co-exist, in society, with legal marriages in New Zealand which are available to non-heterosexual couples.

Civil Union or Marriage?
[8] Marriage as redefined by the Bill will allow non-heterosexual couples the legal rights and responsibilities of marriage. For those couples seeking to solemnise their relationship, the framework of protections and rights which has the best strength and the test of time would be more preferable. While the Bill does not seek to replace the Civil Unions Act 2004 (the Act), it will in effect provide a robust, time-tested protection of legal and common law marriage which may be more preferable to non-heterosexual couples.

[9] The Act, having had the effect of law for over eight years, has shown it is not as complete nor as equal a framework for a civil union as a marriage under the Marriages Act. A particular weakness in the past was with regard to intestate civil union partners and their survivors. In addition to this, the Act makes no provision, nor clear intention as to the ability for the adoption of children between or by Civil Union partners.

[10] For a civil union to be as meaningful as a marriage, it seems the Act will have to be tested further, and corrected by future amendments over many years (perhaps decades) to bring civil unions fully up to the same standard of protection and rights as a marriage under the Marriages Act.

[11] For a non-heterosexual couple, the choices are clear: either enter into a civil union (with the associated problems in points 9 and 10) or continue in their relationship unrecognised and unprotected by the law. There is no option to get married for this couple, but for a heterosexual couple there is this additional option. This amounts to an unusual and contemptible exclusion of non-heterosexual couples to the disparate framework.

[12] ACT on Campus believes that it was pointless for Parliament to have gone to the effort of duplicating a complicated framework of marriage rights, which is somewhat incomplete (by design or mistake), and then, despite allowing non-heterosexuals to enter into a civil union, kept the out-dated and exclusive definition of marriage in the stronger Marriages Act.

[13] This problem of a Separate-but-Equal (in theory) arrangement of marriages in New Zealand was an issue that the government of the day did not address, which has now delayed proper justice to deserving couples.

Adoption Rights for non-heterosexual couples
[14] The bill does not make it clear as to whether Parliament intends to allow non-heterosexual couples adoption rights.

[15] ACT on Campus believes that non-heterosexual couples should not be excluded from a legal right to adopt children. Such an exclusion is sometimes based, incorrectly, on sexual orientation. This kind of justification proposes discriminatory measures to put effect to such exclusion.

[16] ACT on Campus believes that non-heterosexual couples are more than capable of raising and providing for a child, and agrees with views expressed by some experts and research papers which indicate that harms to children are more likely to occur due to environmental, social or economic factors, rather than the sexual orientation of their parents.

[17] ACT on Campus believes that legal rights and protections of adoption should be made to include non-heterosexual couples, and further believes that it would be prudent that if Parliament shares this belief, that it makes such intentions clear in the Marriages Act (the statute the Bill is amending) which makes provision for such adoptive rights and protections for those married under it presently.

[18] Any issues arising with respect to adoptive rights and protections can be addressed in a future Bill, and a clarification of Parliament’s intent, we believe, would be helpful towards that end.

[19] ACT on Campus can not support a bill, however, which would disable those empowered to ordain marriages, who may belong to Churches or other social institutions, from refusing to ordain non-heterosexual marriages which, for whatever reason, may be undesirable according to their beliefs or values.

[20] Our organisation does not condone anti-homosexual or homophobic attitudes; we believe that sexual preferences, like other personal qualities, are private and concern nobody else but those who might be expected to be directly involved. We furthermore believe that refusal to ordain a marriage does no more harm than disappoint those who have applied.

[21] It is possible though, for those ministers or celebrants who will refuse to ordain non-heterosexual marriages, that they will find that it is to their own unfortunate loss that they do so.

[22] It is important, therefore, that if Parliament does not wish to force those with a difference of opinion (towards non-heterosexuals being able to marry) to marry those couples, that it makes such intention clear, preferably by including such intent into the legislation.

[23] ACT on Campus believes that it is fortunate that New Zealand society has progressed from a time when, at the establishment of New Zealand’s legal system in 1852, homosexual activity between men was a capital crime, and where in some parts of society, homosexual activity between women was thought to be impossible. That was in the 19th Century; we are now in the second decade of the 21st Century and finally the opportunity has materialised where non-heterosexual couples can live together, start a family, own a home, and be part of a community - but, as far as we’ve come, they cannot always do so as a couple and with the protection of the law.

[24] A change to the law which would allow non-heterosexual couples to marry (and possibly adopt children), and would not on the other hand force ministers or celebrants to ordain marriages against their values, would for the reasons given above, move New Zealand towards being more open, progressive and benevolent.

[25] With the advent of legislation changing the criminal law to decriminalise homosexual activity in 1986, has come the gradual but inevitable changing of public attitudes towards non-heterosexual individuals. The passage of the New Zealand Bill of Rights Act 1990 has also led to a palpable change in attitudes with respect to individual rights and fairness. The passage of the Civil Unions Act 2004 has also had a similar effect on the public tolerance towards difference in lifestyles and choices of minorities. This pattern illustrates that with prudent and reasonable legal changes, social attitudes can change for the better.

[26] The Bill promotes a kind of progress which means that members of previously marginalised groups of society can have a life they can share with a special person, and perhaps a family of their own, and to be able to do so in a community which will not begrudge them the right to do so.

[27] ACT on Campus, believes that the prevailing situation should be put right by including non-heterosexual couples in the definition of marriage under the Marriages Act.

[28] ACT on Campus is thus pleased to support the changes the Bill seeks to make and is just as proud to be with those others who can say they were on the right side of history on the issue of allowing non-heterosexual couples to marry.