The first civil unions occurred in 2005. Five years later, as we're overtaken on gay marriage rights by Argentina, Mexico, and other countries: did we fight the right battle?

Gay New Zealanders have now had the right to earn state recognition of our rainbow-coloured relationships for a little more than five years. In that time, a lot of the predictions made before civil union legislation have been proved wrong.

Columnist Garth George was wrong -- as he has been on most things in the modern age -- when he said that introducing civil unions would be destructive of "the very foundations of society as we know it". Society's foundations seem hardly to have been affected.

Politician Peter Dunne was wrong to worry that marriage would be weakened because a straight couple could "trade marriage down to a civil union". Other than Helen Clark musing that she would have quite liked to have had a civil union, very few others in ‘opposite marriages' have expressed any desire to downgrade.

And while I am not sure what Destiny Bishop Brian Tamaki meant when he said that the Labour Party had "ordered [sodomy into] law so they could get your child and your grandchild", I'm fairly confident that this has not come to pass.

But some supporters of civil unions have been proved wrong as well: the well-meaning advocates for gay rights who told us that civil unions were a more 'pragmatic' option than gay marriage. That we needed to push for rights quickly, while we still had a 'gay-friendly government'. And that after civil unions were made into law, it would become easier to fight for full marriage.

I'm proud to come from a country that, even among developed nations, is less discriminatory to gay couples than many. But I believe that fighting for the compromise of civil unions instead of trying to open up marriage to gay couples was the wrong option.

Before the time of the Civil Union Act (which saw the first civil unions occur in late-April 2005), there were just nine New Zealand laws that recognised same-sex relationships. The first had been the Electricity Act of 1992. This ground-breaking legislation provided gay couples with the right to fix each other's household appliances.

As of 2004, around 100 laws excluded same-sex couples. At the time, if my partner suffered from an accident or illness, I did not have the right to make decisions about his care. (Fortunately, I was able to get the toaster fixed. Thanks, Electricity Act of 1992!) Gay couples missed out on financial benefits that came from being in an officially recognised heterosexual relationship, including superannuation and death benefits.

The Civil Union Act created a new type of legal relationship called a "civil union", without touching the Marriage Act. That's all that it did.

A second piece of legislation - the Relationships (Statutory References) Act - removed discriminatory provisions from all sorts of statutes and regulations so that immigration, next-of-kin status, social welfare, and matrimonial property rights, etc, would be the same, no matter whether you were in a marriage, a civil union or a de facto relationship. (This left adoption as the one remaining area, as Andrew Geddis has written about, where discrimination was deemed acceptable).

It was the Civil Union Act, not the Relationships (Statutory References) Act that got everyone excited. Well, nearly everyone. A small number of people, myself included, argued that we'd actually rather quite like to have the right to get married.

The Civil Union Act's godfather was Labour MP Tim Barnett, who argued that fighting for civil unions and not marriage was a "pragmatic" move. I always wondered what the outcome would have been if past legislators around the world had decided that, instead of eliminating laws that were clearly discriminatory, they would settle for "pragmatic" gestures.

The basic argument back in 2004 was that the New Zealand populace couldn't stomach the idea of opening up marriage to homosexuals, so we should settle for civil unions instead.

What this argument failed to take into consideration was the inevitability that social conservatives would argue - with great success - that civil unions were just ‘gay marriage in drag'.

So we got a gay marriage battle without getting gay marriage.

The fight in the media and in parliament turned uncivil and then quite nasty, with MPs eventually accusing each other of homophobia. One conservative MP compared civil unions with state recognition of bestiality. Luminaries like Garth George predicted the imminent destruction of the very fabric of society. Bishop Tamaki organised monochrome-suited rallies, and the then-Auckland Mayor Dick Hubbard fretted about the effect on children of having homosexual parents. Nice one, Dick.

The legislation's passage was as divisive as actual fights over gay marriage have been in other countries - in some respects, more so.

We'll never know what might have happened if Labour had opted for principle over pragmatism. Would it have been impossible to get a majority of MPs -- voting with their conscience -- to end discrimination in the Marriage Act?

Would Labour really have lost more political capital fighting for marriage than it did by pushing for civil unions, and caused a larger backlash later against 'social engineering'?

It's possible that I'm wrong and that social conservatives held back during their fight against civil unions, and a battle for gay marriage would have been considerably worse. But I don't think that is true.

What we do know is that since 2005, and quite understandably, no mainstream politician has dared suggest that gays might want more rights. And it's hard to foresee any politician pushing for that ‘next step' on gay marriage.

In parliament, the few actual liberal members of ACT (Deborah Coddington opposed the Civil Union Bill at first because it did not offer full marriage rights) have apparently left. National and the Maori Party have no voice on gay rights. The Green Party deserves kudos for being the only party with a policy of "supporting the extension of all legal partnership arrangements and rights to same-sex couples".

In Labour, Barnett has quit parliament. The main recent achievement of Labour's parliamentary Rainbow Caucus (other than Chris Carter's singlehanded battle to fight homophobia in the media) appears to be donning pink shirts to oppose bullying.

That is a really worthy initiative -- like the current 'It Gets Better' campaign. But in my experience growing up, one thing that might also have helped was having a template of a successful family model that I could aspire to. I believe opening up marriage to gay couples would have sent a more positive message than creating the ersatz alternative of civil unions.

In the five years since civil unions became law in New Zealand, full gay marriage has been legally recognized in Mexico, Sweden, Belgium, Spain, Canada, Portugal, Iceland, Netherlands, Norway, South Africa, some US states, and Argentina.

Civil unions were never going to destroy society as we know it, except in Garth George's feverish imagination. The passage of the Relationships (Statutory References) Act and the Civil Union Act was an important step in reducing discrimination. It was great to see so many well-meaning people fight for those law changes.

But five years later, I still believe that it might have been the wrong battle to fight.

Comments (10)

by John Fouhy on October 21, 2010
John Fouhy

What happens if a gay couple gets married in one of the countries you list, and then moves here?

I assume there's some treaty or law that says New Zealand recognises marriages made overseas, so would that kick in?  Or would we say: "Sorry, you're not married here.  But you can apply for a civil union if you want."

by Deborah Coddington on October 21, 2010
Deborah Coddington

I was in  San Francisco when Judge Vaughn Walker overturned Proposition 8 making gay marriage legal in California. Of course he was threatened, and told he should have "recused" himself because he is gay (shades of Justice Bill Wilson here, today hounded from the Supreme Court - shame on NZ).

I wrote a column on this for HoS because the legal arguments were so beautifully simple - the freedom to marry a person of one's choice is a fundamental right. Gays and lesbians are not arguing for a new right, or a special right. Those who oppose it are wrong. Marriage is not for procreation - should we "unmarry" the elderly or the sterile, or bar them from getting married?

And the Church, the good judge stated, has no place opposing same-sex marriage because marriage is a civil matter, always has been. Religious leaders are permitted by the state to solemnize marriage, but not to determine who may enter or leave the institution of marriage.

Our Civil Union laws, I concluded in my column, are deeply discriminatory (more so than anything uttered by Paul Henry or Michael Laws), yet they are lauded by the cafe revolutionaries.

You are absolutely correct David. We tossed gay people a compromise, an insult. Imagine if we did that to Maori? You may not marry, but you may have civil unions? Quite rightly, there'd be a hikoi. It's time for an MP to get his or her arse into gear and fight for same-sex marriage in New Zealand.

by Tobias Barkley on October 21, 2010
Tobias Barkley

John,

I think a validly married gay couple moving here from overseas would be recognised as married in NZ.

The issue with same-sex couples is legal capacity to marry. In NZ same-sex couples do not have legal capacity to marry, just as siblings do not. (I should note this is for very different reasons - incestuous marriages are a crime, same-sex marriages are simply not authorised under the Marriage Act.)

If a different country has different rules about capacity to marry those rules will govern marriages between two people domiciled in that country. To be domiciled in a country is to intend living there permanently (it is a old legal term not particularly suited to a globalised system).

Recognition is subject to a public policy exception where a New Zealand Court may refuse to recognise the marriage if that would be unconscionable, e.g. the Court would refuse to recognise a marriage that is incestuous under the Crimes Act. Because same-sex marriages are not in this category I think they would be recognised.

Therefore, if an already married couple moved to NZ their same-sex relationship would be recognised, but if a NZ couple moved overseas to get married it would most likely not be recognised back here, because it is quite hard to establish a change in domicile.

by stuart munro on October 21, 2010
stuart munro

It's time for an MP to get his or her arse into gear and fight for same-sex marriage in New Zealand.

Or perhaps, given that the sky didn't fall after the Civil Union Act, it could be extended sensibly, and with a minimum of fuss.

by Deborah Coddington on October 21, 2010
Deborah Coddington

Well I thought it might be easier to just amend the Marriage Act, but when I read through it, it doesn't seem to ban same sex marriages anyway. Any thoughts on that, legal eagles who regularly comment? It does go into marriages conducted in foreign lands, under foreign law though - see S41.

by Arthur Schenck on October 21, 2010
Arthur Schenck

John and Tobias, my understanding is that when a same-sex couple that's legally married overseas moves to New Zealand, their marriage can be registered as a civil union in New Zealand, but it won't be recognised as a marriage because it's illegal for gay people to marry and there's no other legal framework other than civil union to formally recognise the same-sex relationship. A legally married opposite-sex couple will, of course, be considered married.

Deborah is right about the Marriage Act, but the Court of Appeal ruled in Quilter v. Attorney-General [1998] 1 NZLR 523 that "…nothing in the [Bill of Rights Act 1990] or the [Human Rights Act 1993] was intended to alter the traditional concept of marriage upon which the Marriage Act was based," and they further said that changing that was a matter for Parliament.

That's why same-sex marriage is illegal in New Zealand.

I suspect that getting any MP from any party to back a change to the Marriage Act will be impossible for a long time. Neither Labour nor the Greens—the two most likely sponsors—are willing to go anywhere near this.

My partner and I entered into a Civil Union in 2008 because we wanted the protections the law provides, not because we were satisfied with a separate-but-sort-of-almost-equal civil union. We are second-class citizens because we cannot marry—we never had that option, unlike our heterosexual family members. I think it's important that we make it clear that half-equal isn't equal at all.

by David Young on October 22, 2010
David Young

I 100% agree with you Arthur -- "half-equal isn't equal".

Deborah, I really liked the column you wrote on Proposition 8. It seemed to me during the NZ civil union clash that many of the ‘cafe revolutionaries' you talk about got a bit carried away with the excitement of fighting Destiny Church and social conservatives. Most gay and lesbian New Zealanders I know felt far more ambivalent - in fact, I don't know any who didn't support full marriage rights over civil unions.

John, as far as overseas marriages go:- The Civil Union Act has a provision that means that there must be sets of regulations that prescribe which overseas relationships will be recognised in New Zealand as civil unions.

The Minister of Justice (currently Simon Power) is responsible for these regulations.

My understanding is that there has only been one set of Regulations, the Civil Union (Recognised Overseas Relationships) Regulations 2005. These included just five places whose civil unions would be recognised: Finland, Germany, the UK, New Jersey or Vermont.

A civil union that is registered in Denmark, Uruguay, France, or a dozen other places (or a gay marriage registered anywhere that is legal) will therefore not be recognised as such in New Zealand. (But many couples who had held such a ceremony overseas would be recognised as being in a de facto relationship in New Zealand. Yay.)

This 2006 article by Joanna Campbell in the VUW Law Review, ‘The New Zealand Civil Union Act: New Challenges for Private International Law' (PDF) has more details on the Quilter case, and a wealth of information on recognition of overseas relationships. (Not too much has changed since the article was written).

by Hamish Stewart on October 22, 2010
Hamish Stewart

What a fantastic blog. The point that I as a straight male have now an option of a civil union an option I would much prefer to marriage as an atheist but that you don't have the same right as a gay man to marriage in my mind points to the issue. My options were extended as were yours but your rights in a real sense moved a little.

 

The current situation is a farce and whilst I am centre left I can't see this as a left / right issue. This is an issue of freedom an issue of equality for all under the law.  

by Chris de Lisle on October 23, 2010
Chris de Lisle

"marriage is a civil matter, always has been"

I think that depends on how long you mean by always. It did use to be regulated by canon law, recorded only in a prish register. Go even further back and it was a personal thing defined by cohabitation and mutual assent (usually also community assent).

I really don't understand why, in the modern day, it has anything to do with the state. I see no rational reason why marriage requires a state-certified marriage celebrant, a license to get married from the state, an oath to the state that one is allowed to get married, and a fee paid to the state.

We don't, generally, like state-imposed morality anymore; why do we continue it in marriage, at the very heart of the private sphere?

I guess what I'm asserting is that this isn't an area where the law should be granting more rights, it's an area where rights exist naturally and the law shouldn't be involved.

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