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Point of View with Barb
Sumner Burstyn - June 30 2003
Time to take a leaf out of Canada's equality
book
Last weekend on the roof-top bar of a downtown Toronto hotel,
a well-dressed man at the next table crossed his legs, dangled a
7cm spike-heel from his pedicured foot and ordered another blue
martini.
Perhaps he was practising for Gay Pride, which is about to begin
in Toronto. But while the drag queen may be one public face of the
gay community, another - marriage - is asserting itself among the
frivolous fun planned for Pride Week.
On June 10 the Ontario Court of Appeal ruled that the traditional
definition of marriage discriminates against gays and lesbians.
It has now redefined marriage as couples committed to a voluntary
union for life, to the exclusion of all others.
Since the ruling, City Hall has issued 193 marriage licences to
same-sex partners and is even planning to stay open throughout the
Gay Pride weekend to deal with the anticipated rush.
Of course, not everyone was happy with the decision. Right wing,
CanWest-owned newspapers opined that Canada was going to hell in
a handcart. There was also some disquiet about the fact that a Court
of Appeal, rather than an act of Parliament, had overturned centuries
of commonly held belief about marriage.
In New Zealand, Auckland family law specialist Ross Knight says
the 1955 Marriage Act confines marriage to a union between a man
and a woman, although those words are not defined by the act.
And in 1998 a full bench of the New Zealand Court of Appeal rejected
an appeal by three lesbian couples who complained that the Registrar
of Births, Deaths and Marriages had unlawfully refused to issue
them marriage licences.
In the case, known as Quilter v Attorney-General, the court was
not asked to decide whether such refusal amounted to discrimination
under the New Zealand Bill of Rights Act.
One of the judges, Justice Thomas, considered that the exclusion
of gays and lesbians from the status of marriage was discriminatory.
Even so, the court held overwhelmingly that until the law was changed
by Parliament, lesbian and gay marriages were not permitted.
But here is the problem. New Zealand law recognises the validity
of any marriage solemnised out of New Zealand in accordance with
the law of the country in which it was made official. For that reason
alone, the Canadian decision is likely to be a significant development
in common-law jurisprudence, Mr Knight says.
So, given that Ontario has no residency or citizenship requirements
for people who want to wed, technically a New Zealand same-sex couple
could go to Canada and return as legal spouse and spouse. The United
States is in the same position. There, activists are gearing up
to use Canada's decision to challenge the present laws. They say
gay and lesbian Americans will flock to Canada to marry, then return
and demand equalities in areas now reserved for heterosexuals.
Opposition to the ruling has been vigorous, with conservative
commentators stating that Canada has become a corrupting influence.
So has Canada lost its moral moorings and do the arguments against
gay and lesbian matrimony stack up?
Leading the charge against same-sex marriage is the belief that
it will damage the sanctity of marriage for all time. But surely
marriage has been altered far more by the liberalisation of divorce
laws than same-sex nuptials ever could.
Christians believe the Bible condemns it. But then the good book
also instructs parents to stone their unruly sons and sell their
misbehaving daughters into slavery.
Opponents state that marriage is for the procreation of children.
But where does that leave all those childless-by-choice couples,
or those fighting infertility?
Then there is the idea that marriage is based on sexual difference,
on complementary gender roles. In other words, men want sex, women
want love and family, and marriage is the bargain they strike.
Is that how New Zealanders view marriage? Certainly not in my
circles.
It seems that by not repealing our marriage laws we are, by default,
playing into this dated, conservative view. And the last time I
looked, heterosexual marriage was not such a cookie-cutter arrangement
anyway.
How about marriages with huge age gaps, or multiple marriages?
Do they not, equally, damage the sanctity of matrimony?
Another argument is that homosexual lifestyles are a choice driven
by sexual promiscuity. But some gays and lesbians define their diversity
by their sexual behaviour and some do not.
Ultimately, this issue is one of choice. As the law stands in
New Zealand, gay and lesbian couples who wish to marry must instead
co-habit under a form of second-class citizenry, their relationship
recognised in some law but not others, devoid of the benefits of
marriage and less protected from the adversities of relationship
breakdown than their heterosexual peers.
Given the profound social and emotional values in having your
relationship legally recognised by family, friends and society,
same-sex couples should be given equal opportunity to experience
the splendour and travail that is marriage.
And, like couples everywhere, not all committed gay and lesbian
partnerships will feel the need to be married. But for those who
do, there is no logical reason to stop them.
The question remains: who will be the first gay or lesbian New
Zealand couple to return from Canada wearing legally matching rings?
ENDS
© Barbara Sumner Burstyn, 2003
Send your comments to:
Barbara Sumner
Burstyn.
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