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New Zealand: Same-Sex Marriage Bill Passes First Vote

(Aug. 30, 2012) On August 29, 2012, the New Zealand Parliament voted on the First Reading of a bill that seeks to make provision for same-sex marriage in the country. (John Hartevelt, Bill Passes First Reading, STUFF.CO.NZ (Aug. 29, 2012).) The 80-40 vote in favor of the bill means that it will now be referred to a select committee, which will receive public submissions and hold hearings on the bill. The bill will then need to pass two further votes in Parliament before it becomes law. (Progress of the bill and related documents can be found on the New Zealand Parliament website, at Marriage (Definition of Marriage) Amendment Bill (last visited Aug. 29, 2012).)

The Marriage (Definition of Marriage) Amendment Bill (NEW ZEALAND LEGISLATION) was introduced by Louisa Wall of the opposition Labour Party, one of seven openly gay members of Parliament in New Zealand. (See Meet “Your” Gay and Lesbian MPs, GAYNZ.COM (Nov. 28, 2011).) It is a Private Member’s bill, rather than a Government Bill, and is subject to a “conscience vote.” This means that individual members of Parliament can decide how to vote on the bill at each stage, rather than each political party in Parliament determining whether or not party members should vote for the bill.

The bill seeks to amend the Marriage Act 1955, which does not currently specifically prohibit same-sex marriage, but also does not make provision for it. (Marriage Act 1955, NEW ZEALAND LEGISLATION.) Court decisions in New Zealand have previously interpreted the legislation and applied a definition that restricts marriage to only being possible between a man and a woman. In particular, in Quilter & Ors v Attorney-General [1998] 1 NZLR 523 (case summary in [1997] ICHRL 128), the Court of Appeal held that the overall language of the Marriage Act expresses the traditional common law concept of marriage, which includes marriage only between a man and a woman.

The bill would insert a definition of marriage into the interpretation section (§ 2) of the Marriage Act 1955 to state that “marriage means the union of 2 people, regardless of their sex, sexual orientation, or gender identity.” (Marriage (Definition of Marriage) Amendment Bill, cl 5.) It would also amend provisions on prohibited degrees of marriage so that these include gender neutral terminology. Currently, the provisions on forbidden marriages contain separate lists for women and men of persons they cannot marry. (Marriage Act 1955, Second Schedule, cl 1 & 2.)

New Zealand enacted civil union legislation in 2005, which allows both same-sex and opposite-sex couples to enter into civil unions, with accompanying amendments to other legislation meaning that people in civil unions have generally the same rights as married couples. (Civil Union Act 2004; Property (Relationships) Amendment Act 2005; Relationships (Statutory References) Act 2005, all from NEW ZEALAND LEGISLATION.) However, provisions in the Adoption Act 1955 mean that only married couples are able to adopt children as a couple, with people in other relationships being able to adopt only as individuals. (Adoption Act 1955, NEW ZEALAND LEGISLATION.) The amendments proposed in the current bill will mean that married same-sex couples will be able to jointly adopt children under the existing Adoption Act provisions.

The bill has generated widespread public debate. On the day of the First Reading, about 1,000 people marched to Parliament in support of the bill, and the public gallery inside the debating chamber was full during the debate and vote. (Sam Boyer, 1000 March for Same-Sex Marriage, STUFF.CO.NZ (Aug. 29, 2012).) A petition organized by the lobby group Family First and delivered to members of Parliament garnered 50,000 signatures in opposition to same-sex marriage, and a joint statement by 70 church ministers also opposed the bill. (Isaac Davison & Rebecca Quilliam, 50,000 Sign Against Gay Marriage, NEW ZEALAND HERALD (Aug. 28, 2012); Churches Unite Against Same-Sex Marriage Bill, NEW ZEALAND HERALD (Aug. 29, 2012).)

Some members of Parliament who voted in favor of the bill at its First Reading have said that they did so in order to ensure that the views of the public are fully considered through the select committee process, but that this did not guarantee their support during the later stages of consideration of the bill. (John Hartevelt, supra.) A survey conducted in June of this year indicated that nearly two-thirds of New Zealanders support same-sex marriage. (Kiwis Back Gay Marriage – Poll, STUFF.CO.NZ (June 7, 2012).)