New Zealand Campaign for Marriage Equality – Submission in favour of the Bill 2
One law for all
The law currently treats same-sex couples differently
The Marriage Act currently allows heterosexual couples to marry, but does not allow same-sexcouples (that is, two men or two women) to marry.
The Act therefore treats heterosexual couplesand same-sex couples differently.In the
case 15 years ago, the Court of Appeal ruled by a 3:2 majority that this differenttreatment is not discriminatory in a technical sense under the New Zealand Bill of Rights Act.Underlying this conclusion was a concern that any change to the definition of marriage should bemade by Parliament directly, rather than by a judicial decision.
That is exactly what is now proposed.If the Marriage Act were to come before the courts today, it is very likely that the courts would rule thatthe Act is discriminatory. This is because the Court of Appeal’s reasoning in Q
has beensuperseded by the Supreme Court’s decision 3 years ago in
Air New Zealand v McAlister
, whichtakes a “purposive and untechnical approach” to discrimination.
Indeed, just 6 months ago, the Courtof Appeal ruled that the Supreme Court’s decision in
now “reflects the [minority] approachtaken by Tipping J in
”, who ruled that the Marriage Act is prima facie discriminatory.
This is also consistent with multiple court decisions from Canada,
the United States,
and other countries around the world subsequent to
, in which similar legislation overseas hasbeen found to be discriminatory.More broadly, whether or not the Marriage Act is discriminatory in a technical sense under the Bill of Rights Act (and we submit that, for the reasons set out above, it
discriminatory), there can be nodispute that the Marriage Act treats same-sex couples differently from heterosexual couples. The lawshould only treat people differently if there are good reasons to do so. For the reasons set out below,we submit that there are no good reasons.
Quilter v Attorney-General
 1 NZLR 523 (CA), ruling that under the Marriage Act, a man and a woman –that is, heterosexual couples – can marry, but two men or two women – that is, same-sex couples – cannot.
, above n1, at 567, 571.
Air New Zealand v McAlister
 NZSC 78 at .
Ministry of Health v Atkinson
 NZCA 184 at . In
, Tipping J observed at 573 that the courtsmust “give substance to the principle of equality under the law and the law’s unwillingness to allow discriminationon any of the prohibited grounds unless the reason for the discrimination serves a higher goal ...”.
Halpern v Canada
(2002) 95 CRR (2d) 1 (Ontario),
Hendricks v Quebec
 RJQ 2506 (Quebec),
Barbeau v British Columbia
(2003) BCCA 251 (British Columbia),
Dunbar & Edge v Yukon
(2004) YKSC 54(Yukon),
Vogel v. Canada
Boutilier v Canada and Nova Scotia
NW v Canada
(2004)SKQB 434, 246 DLR (4th) 345 (Saskatchewan).
Goodridge v Dept of Public Health
(2003) 798 NE 2d 941 (Massachusetts),
In re Marriage Cases (
183 P3d 384 (California),
Varnum v Brien
(2009) 763 NW 2d 862 (Iowa). See also, addressing similar issues,
Perry v Schwarzenegger
(2010) 704 F Supp 2d 921 (Northern District of California), affirmed
Perry v Brown
(2012) 671 F3d 1052 (9th Circuit Court of Appeals),
Gill v Office of Personnel Management
(2012) 682 F 3d 1 (1st CircuitCourt of Appeals),
Massachusetts v United States
(2012) 698 F Supp 2d 234 (1st Circuit Court of Appeals),
Golinski v Office of Personnel Management
(2012) 824 F Supp 2d 968 (Northern District of California),
Windsor v United States
(Second Circuit Court of Appeals, 18 October 2012).
Minister of Home Affairs v Fourie
 ZACC 19, 2006 (1) SA 524 (CC).