October 24, 2012 1:00pm by David Farrar

Marriage (Definition of Marriage) Amendment Bill Submission

SUBMISSION OF DAVID FARRAR ON THE
MARRIAGE (DEFINITION OF MARRIAGE) AMENDMENT BILL TO THE GOVERNMENT ADMINISTRATION SELECT COMMITTEE

 

About the Submitter

  1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.
  2. While not a detail I would normally include in a submission, I am heterosexual, so have no self-interest in this bill.

Overall Bill

  1. I submit in support of the bill proceeding. To quote Dr Paul Hutchison, “I simply cannot construct a strong enough intellectual moral health or even spiritual argument against it … and the reverse is very much the case.” This bill will allow a couple of the same sex to marry each other, which I believe to be good for the couple, good for the institution of marriage, and good for New Zealand. I do support some amendments being made to clarify the impact of this bill on other Acts of Parliament

Equality

  1. A same sex couple is of course different to a couple of the opposition gender. But this doesn’t mean that the law should discriminate in not allowing same sex couples to marry. Same sex couples fall in love, commit to each other, form households and raise children – the core of being a family. The law should allow such couples to marry. Why would we want an adult couple desiring marriage to not be able to marry?
  2. Some argue that as a same sex couple can’t produce children naturally, that they should be ineligible to marry. I do not accept this argument as many married couples are infertile, choose not to have children, or have children from past relationships. We don’t ban woman who have reached menopause from marrying, and now should we ban same sex couples.

Strengthening Marriage

  1. I think marriage is a wonderful institution, and the benefits of marriage are well documented. I believe allowing a same sex couple to marry, hence committing to each other for life, strengthens the institution of marriage.
  2. I would like to quote three conservative leaders as to why same sex marriage is good for marriage. US Solictor-General (for George W Bush) Theordore Olsen has said “Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize.Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society.

    The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.”

    and“I understand, but reject, certain religious teachings that denounce homosexuality as morally wrong, illegitimate, or unnatural; and I take strong exception to those who argue that same-sex relationships should be discouraged by society and law. Science has taught us, even if history has not, that gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual.

    To a very large extent, these characteristics are immutable, like being left-handed. And, while our Constitution guarantees the freedom to exercise our individual religious convictions, it equally prohibits us from forcing our beliefs on others. I do not believe that our society can ever live up to the promise of equality, and the fundamental rights to life, liberty, and the pursuit of happiness, until we stop invidious discrimination on the basis of sexual orientation.

  3. UK Conservative PM David Cameron: “But for me, leadership on families also means speaking out on marriage. Marriage is not just a piece of paper. It pulls couples together through the ebb and flow of life. It gives children stability. And it says powerful things about what we should value. So yes, we will recognise marriage in the tax system.

    But we’re also doing something else. I once stood before a     Conservative conference and said it shouldn’t matter whether commitment was between a man and a woman, a woman and a woman, or a man and another man. You applauded me for that. Five years on, we’re consulting on legalising gay marriage.
    And to anyone who has reservations, I say: Yes, it’s about equality, but it’s also about something else: commitment. Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.

  4. Former Australian Liberal Party Leader Malcolm Turnbull said “Families are the foundation of our society and I am firmly of the view that that we would be a stronger society if more people were married – and by that I mean formally, legally married – and fewer were divorced. …And I have to say that I am utterly unpersuaded by the proposition that my marriage to Lucy, or indeed any marriage, is undermined by two gay men or two lesbians setting up house down the road – whether it is called a marriage or not.

    Regrettably, this aspect of the debate is dripping with the worst sort of hypocrisy, and the deepest pools are all too often found among the most sanctimonious.

    Let us be honest with each other. The threat to marriage is not the gays. It is a lack of loving commitment – whether it is found in the form of neglect, indifference, cruelty or adultery, to name just a few manifestations of the loveless desert in which too many marriages come to grief.”

  5. I agree with Messrs. Cameron, Turnbull and Olsen that allowing same sex couples to marry will strengthen the institution of marriage.

Welcoming diversity

  1. Adolescence is a difficult time for many teenagers, and gay/lesbian teenagers especially can find it more challenging than most as they wonder whether there is something “wrong” with them as they are not attracted to the opposite sex like most of their peers are. We see the results of this in the significantly higher levels of suicide amongst gay and lesbian teenagers. The 2007 Auckland University study of around 9,000 secondary school students found 20% of youth attracted to the same (or both) sex attempted suicide in the last year. This is an appallingly high figure.
  2. Knowing that despite their “different” sexual orientation, that one day they can love and marry someone will I think send a very powerful message to young gay and lesbian New Zealanders that there is nothing wrong in being different, and that the Parliament of New Zealand has said so by allowing same sex couples to marry.

Tradition

  1. One argument against allowing same sex couples to marry is that this goes against the traditional definition of marriage.
  2. This is no surprise. Up until 27 years ago, it was a criminal offence for a homosexual man to even have consensual sex with another adult man. So of course there is no recent tradition of same sex marriage.
  3. If we go back far enough to be very traditional, I would point out that In the 1st century AD Emperor Nero is reported to have married a male slave. Later in 342 AD Emperor Constantius II outlawed same sex marriage with a penalty of execution. This suggests that there were a number of same sex marriages prior to that.
  4. Regardless marriage has in fact changed significantly over time. I follow with some examples.
  5. Traditionally the age of marriage was the onset of puberty. In the 12th century European canon law documented by Gratian allowed marriage from the age of seven onwards, and stayed in force religiously until 1918. In 1689 a nine year old Mary Hathaway was married in the US.
  6. Interracial marriage was banned in the US until the California Supreme Court over-turned this in 1948 and then the US Supreme Court in 1967. The ban was not removed from the Alabama state constitution until the year 2000.
  7. Married couples were prohibited from using contraception in the US until 1965.
  8. Traditionally under English common law, a married woman had no legal identity outside that of her husband, until laws started to change in 1839. It wasn’t until 1981 that a married woman in the US had equal property rights with her husband.
  9. I hope these examples show that the nature of marriage, and the eligibility of two people to marry, has changed over time and I think we would all agree for the better. Tradition should not trump equality.

Religious v Civil Marriage

  1. Some people advocate that ideally the state should not decide who can or can’t marry. That marriage is primarily a religious institution, and that the state should merely register civil unions, and allow couples to get a “blessing of marriage” from a religion should they wish to.
  2. I agree that this would be an ideal situation, respecting the origins of marriage as a religious ceremony. If an MP wishes to put up a bill abolishing marriage as a civil institution, then that would be good, and I would advocate for its passage,
  3. However the reality is that marriage is a state institution in pretty much every country on Earth, and that it is unlikely to ever not be a state institution in New Zealand. While it remains a state institution, I believe it would be wrong to deny the institution of marriage to same sex couples.
  4. PM John Key recently said that in politics you don’t start with a blank slate of paper, you start with the real world. In the real world marriage is a state institution, and rejecting same sex marriage on the basis that the state shouldn’t decide at all who can get married is turning a blind eye to the fact that the state does decide, and is likely to always do so.

Amendments

  1. It is unclear to me whether this bill as currently worded would allow a married same sex couple to adopt under the Adoption Act 1955. I note a gay or lesbian individual can currently adopt, but not jointly with their partner.
  2. The definition of adoptive parent in s2 of the Adoption Act refers to a husband and a wife. However in s3(2) it refers to “2 spouses jointly” being able to apply for an adoption order. I suspect a court would have to decide which clause takes precedence, which will mean uncertainty.
  3. To remove uncertainty, I propose that this bill be amended with the addition of a clause stating that a married couple should be treated as eligible to jointly adopt under the Adoption Act. Arguably such a clause could be worded to apply to any other Act which refers to married couples, spouses or husbands and wives.
  4. A benefit of having a specific clause amending the Adoption Act is it would allow MPs to vote explicitly on both the issue of same sex marriage and same sex (as a couple) adoption. I would advocate Parliament votes in favour of both.
  5. Some people have expressed a concern that churches could be forced to marry same sex couples in contravention to their religious beliefs. I agree this is undesirable. I do not regard this as likely, and note neither does the Human Rights Commission. To remove doubt, I recommend an explicit clause be inserted to state no religious body, or minister of religion shall be required to perform a marriage ceremony in violation of their religious beliefs, nor provide facilities for such a ceremony unless that facility is available to the general public.
  6. Another concern is that it is an offence under s56 of the Marriage Act to allege that “any persons lawfully married are not truly and sufficiently married” and that this could capture someone saying that a same sex marriage is not in the eyes of their religion a “true” marriage. I recommend the select committee look at amending or repealing s56 to minimize this perceived risk. I note there has never been a prosecution (it appears) under s56, and other laws such as defamation may be sufficient to repeal it safely.

Thank you for considering this submission. I would like to make an oral submission in support, and look forward to appearing.

 

David Farrar

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