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Baldock: Marriage - it's a man-woman thing

Oped piece

For immediate release

Monday, 25 July 2005

United Future's Larry Baldock's Marriage (Gender Clarification) Amendment Bill is expected to come before Parliament on Wednesday. Here he reveals the thinking behind it.

Baldock: Marriage - it's a man-woman thing

Five men sitting on a park bench might make little impact on the world. But put those same five men on a court bench, and their decisions can change a nation.

This was the position back in 1997, when five Court of Appeal judges in what is known as the Quilter case were asked to decide whether three same-sex couples should be allowed to marry. Essentially, they were being asked to decide whether the Marriage Act 1955 was discriminatory.

The problem is that the Marriage Act does not say that marriage must only be between a man and a woman. However, the judges commented that this was because the Act was based on the common law position that marriage was between a man and a woman.

They also suggested that if there was any doubt about this situation, it was up to Parliament to change the law to make the matter clear.

Parliament has been surprisingly hesitant to take up the judges' suggestion, and the debate over the civil union legislation passed at the end of last year has left a lot of ambiguity hanging over our heads.

It was for this reason I drafted a private member's bill, which I have had the good fortune to have drawn from the ballot. The main purpose of this Bill is simple: to clarify that parties to a marriage must be one man and one woman.

During the parliamentary debate on the Civil Union Bill, the minister steering it through the House, David Benson-Pope was asked about the distinction between a marriage and a civil union. In response he said that one distinction between the two was that "marriage has always been, and will continue to be, available solely to a man and a woman"

That position is not guaranteed, however. Despite the Quilter decision, the Marriage Act is still open to challenge in the court and could conceivably be overturned at some stage.

All I am asking is that if Mr Benson-Pope believes what he said in Parliament, that he codify it.

This is not attempting something strange, or which goes against the law as we have understood it. The common law understanding of marriage goes back centuries, if not longer-not surprising, as mankind's survival depends on a man and a woman coming together to create a new generation.

Australia last year passed a similar law. Massachusetts in the USA has legalised same-sex marriage, but in an unprecedented wave across the country a raft of states later spelled out clearly that marriage is for men and women only, and some of these were states which had already permitted civil unions.

When my Bill comes up for its first reading in parliament-possibly on 27 July-the vote could be close. Most parties are not treating this as a conscience vote and will vote on block. National, United Future, New Zealand First and the Maori Party have indicated their support for the Bill. For reasons which they have not yet spelled out, Labour, the Greens and the Progressive Coalition have indicated that they will vote against the Bill, although the Labour caucus may permit some courageous MPs to "cross the floor" and support the Bill. The ACT party is likely to be split on the issue.

The Prime Minister has said the Bill is not necessary marriage between a man and woman is the common law understanding and it is a waste of Parliament's time to codify common law. This is not consistent, however, with the support of the Foreshore and Seabed Bill, which also codified a common law position.

In addition, failure to clarify the law will leave it vulnerable. It is almost certain that those who want full same-sex marriage legalised in New Zealand will mount a challenge. As some courts in overseas countries have already overturned the common law position, there is no guarantee the same cannot happen here.

By not wishing to support this Bill, what are MPs saying about marriage? Are they hoping that the courts will do what they would like to but fear to promote publicly?

As the judges in the Quilter case pointed out, this is Parliament's responsibility. They-not a bench of unelected judges-were put into parliament to make the law, and they cannot ignore their duty.


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