Date: Sun, 14 Dec 1997 21:08:11 -1000 From: lambda@aloha.net (Martin Rice) Subject: NZ 328: NZ SSM RULING DUE TUESDAY Aloha ahi ahi kakou. The International Dateline makes this decision due out Tuesday, U.S. time zones . . . . HISTORIC CASE DECISION OUT THIS WEDNESDAY The New Zealand Appeal Court will release its decision 10am this Wednesday from the country's highest court on the 1996 High Court decision to not allow same sex couples to have legal recognition of the relationship as marriage. Judge Richardson and four other Appeal Court Judges listened and debated in early September Rodney Harrison's QC submission on behalf of LINDSAY QUILTER and MARGARET PEARL, JULIET ANN JOSLIN and JENNIFER DAPHNE ROWAN, and SARAH JANE ANDERSON and SAMANTHA JANE COURT and THE ATTORNEY-GENERAL (Respondent) Already a number of Parliaments around the world are introducing full legal recognition of marriage for homosexual couples bestowing the rights, protections and acts of law to all their citizens. NEW ZEALAND SAME SEX MARRIAGE INTERNET SITE http://www.base2.co.nz/agm/agm.html Email Jools@gap.org.nz SUMMARY OF THEW NEW ZEALAND ARGUMENT The basic argument for the appellants can be shortly stated. Parts III and IV of the Marriage Act govern eligibility to marry. "Marriage" is not defined in the Act. The eligibility provisions of the Act are drafted in gender neutral language ("person" or "persons"; "party" or "parties"), as is the Act as a whole, with two exceptions which need not be seen as providing an obstacle to same-sex marriage. Section 19 of the Bill of Rights (as amended by the Human Rights Act 1993) provides that everyone has the right to freedom from discrimination on grounds which include sex, marital status, family status and sexual orientation. Whatever the original common law definition/concept of "marriage" may have been in 1955, it must now be framed so as to avoid discrimination on the prohibited grounds. Furthermore, to the extent that statutory interpretation rather than common law definition is at issue, s 6 of the Bill of Rights requires that, if the Marriage Act "can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning". Restating the common law and interpreting the Marriage Act so as to permit same-sex marriages is consistent with the anti-discrimination provisions of the Bill of Rights and does not offend s 3 of the Bill of Rights (because no provision of the Marriage Act precludes same-sex marriage), so that the Marriage Act by reason of its gender neutral language as to eligibility to marry can and indeed must be interpreted accordingly. The Crown argument to the contrary, accepted by Kerr J, is that the "common law definition of marriage" limits that institution to marriage between a man and a woman, and that the limitation is a justifiable one in terms of s 5 of the Bill of Rights. In response, the appellants will argue: 4.1 The traditional common law definition/concept for historical reasons does not actually address the question, and therefore cannot be seen as today determining, whether "marriage" includes same-sex marriages. 4.2 If it is the traditional common law view that only different-sex couples may marry, then the traditional common law itself does not reflect current social realities and values and, more importantly, discriminates contrary to the Bill of Rights and must either be modified or not given effect to. 4.3 In the alternative, if it is immutably the traditional common law view that only different-sex couples may marry, this cannot in any event withstand the injunction to interpret the Marriage Act so as to avoid discrimination on the grounds of sex and sexual orientation contained in s 6 of the Bill of Rights. 4.4 Neither the traditional common law definition/concept of marriage nor an interpretation of the Marriage Act which relies on it (or any other process of statutory interpretation) can be characterised as involving only a reasonable limit on the relevant right to freedom from discrimination, prescribed by law, "as can be demonstrably justified in a free and democratic society", in terms of s 5; the onus being on the Crown to prove and make out this contention. ___________________________________________________ GAP is Australasia's largest business & professional network proudly supporting gays and lesbians. Box 122 70, WELLINGTON 6038 Fax: +64 4 472 22 26 GAP INFOline +64 4 472 5006 Email gap@nz.com http://www.gap.org.nz ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "We continue to lead the fight to end discrimination on the basis of race, gender, religion, age, ethnicity, disability and sexual orientation. . . . We support continued efforts, like the Employment Non-Discrimination Act to end discrimination against gay men and lesbians and further their full inclusion in the life of the nation." --excerpt, 1996 Democratic Party Platform ~~~~~~ Fred and Martin, 24 years, yet strangers before all but 16.7% of the law. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~