Debate has started again on to the rights of same-sex couples to marry. We are told that legislation will be introduced to permit same-sex couples to enter “civil unions”. You need to express your views on this issue, to start the debate two recent statements within the international debate are reproduced.

The Economist 28 February 2004 records that because of his views on gay rights “George Bush is in favour of unequal rights, big government intrusiveness and federal power rather than devolution to the states. George Bush made an announcement that he will support efforts to pass a constitutional amendment in America banning same-sex marriage.

Mr Bush says that he is acting to protect “the most fundamental institution of civilisation” from what he sees as “activist judges” who confirmed an earlier ruling that banning same-sex marriage is contrary to their state constitution. San Francisco, the gay capital of America, has been issuing thousands of marriage licences to homosexual couples, in apparent contradiction to state and even federal laws. While accepting that America is in election mode neither candidate supports gay marriages, but both support civil unions that confer some marriage benefits.

On 1 March 2004 The Guardian reported that in England the attitudes of the conservatives had mellowed:

”Two weeks ago Michael Howard, who, in Margaret Thatcher’s government, was a hardline opponent of gay rights, publicly endorsed ministerial moves that will give gay couples more legal rights. He not only promised Tory MPs a free vote on the civil partnership bill - which will allow same-sex couples to register their relationship and qualify for new rights including joint treatment for state benefits - but declared he would be supporting it.”

The debate over the rights of same-sex couples to marry is still alive internationally and The Economist addresses the issues in the debate in the following way:

“Let them wed”
That idea remains shocking to many people. So far, only two countries - Belgium and the Netherlands - have given full legal status to same-sex unions, though Canada has backed the idea in principle and others have conferred almost-equal rights on such partnerships. The sight of homosexual men and women having wedding days just like those enjoyed for thousands of years by heterosexuals is unsettling, just as, for some people, is the sight of them holding hands or kissing. When The Economist first argued in favour of legalising gay marriage eight years ago (“Let them wed”, 6 January 1996) it shocked many of our readers, though fewer than it, would have shocked eight years earlier and more than it will shock today. That is why we argued that such a radical change should not be pushed along precipitously. But nor should it be blocked precipitously.

The case for allowing gays to marry begins with equality, pure and simple. Why should one set of loving, consenting adults be denied a right that other such adults have and which, if exercised, will do no damage to anyone else? Not just because they have always lacked that right in the past, for sure: until the late 1960s, in some American states it was illegal for black adults to marry white ones, but precious few would defend that ban now on grounds that it was “traditional”. Another argument is rooted in semantics: marriage is the union of a man and a woman, and so cannot be extended to same-sex couples. They may live together and love one another, but cannot, on this argument, be “married”. But that is to dodge the real question - why not? - and to obscure the real nature of marriage, which is a binding commitment, at once legal, social and personal, between two people to take on special obligations to one another. If homosexuals want to make such marital commitments to one another, and to society, then why should they be prevented from doing so while other adults, equivalent in all other ways, are allowed to do so?

Civil unions are not enough
The reason, according to Mr Bush, is that this would damage an important social institution. Yet the reverse is surely true. Gays want to marry precisely because they see marriage as important: they want the symbolism that marriage brings, the extra sense of obligation and commitment, as well as the social recognition. Allowing gays to marry would, if anything, add to social stability, for it would increase the number of couples that take on real, rather than simply passing, commitments. The weakening of marriage has been heterosexuals’ doing, not gays’, for it is their infidelity, divorce rates and single-parent families that have wrought social damage.

But marriage is about children, say some: to which the answer is, it often is, but not always, and permitting gay marriage would not alter that. Or it is a religious act, say others: to which the answer is, yes, you may believe that, but if so it is no business of the state to impose a religious choice. Indeed, in America the constitution expressly bans the involvement of the state in religious matters, so it would be especially outrageous if the constitution were now to be used for religious ends.

The importance of marriage for society’s general health and stability also explains why the commonly mooted alternative to gay marriage - a so-called civil union - is not enough. Vermont has created this notion, of a legally registered contract between a couple that cannot, however, be called a “marriage”. Some European countries, by legislating for equal legal rights for gay partnerships, have moved in the same direction (Britain is contemplating just such a move, and even the opposition Conservative leader, Michael Howard, says he would support it). Some gays think it would be better to limit their ambitions to that, rather than seeking full social equality, for fear of provoking a backlash - of the sort perhaps epitomised by Mr Bush this week.

Yet that would be both wrong in principle and damaging for society. Marriage, as it is commonly viewed in society, is more than just a legal contract. Moreover, to establish something short of real marriage for some adults would tend to undermine the notion for all. Why shouldn’t everyone, in time, downgrade to civil unions? Now that really would threaten a fundamental institution of civilisation.”

Locally this issue has not gone away. As family lawyers we should lead the debate. Is “marriage” an outdated institution? What are the limitations of not being married? What are the benefits of not being married? What in New Zealand are the legal disadvantages? Are “gays” grandstanding? We need to debate publicly the real issues? The debate may not simply be conservatives v liberals, and may have more to do with religious views rather than political ideals.

Families have changed. More same-sex couples want to take on the shared responsibilities of a committed relationship – is it in all our interests to encourage the voluntary acceptance of such shared responsibilities? Family lawyers should enter this debate in a positive and rational way and not wait for each side to be fixed their position.

Murray Earl
Barrister, Hamilton