Case Summaries

QUILTER V. ATTORNEY GENERAL,
CA 200/96 (N.Z. CT. APP. 1997)

In this case, the court was faced with a challenge to the denial of marriage licenses to three lesbian couples. The couples, relying on New Zealand’s gender-neutral marriage law, argued that the Bill of Rights Act which forbids discrimination on the grounds enunciated in the Human Rights Act of 1993 (which includes both sex and sexual orientation). The case was unanimously dismissed, but the five written opinions of the Justices varied widely.

The first opinion, by Justice Richardson, was the briefest. Justice Richardson argued that the Marriage Act only allows for opposite sex couples to marry and that it would take a legislative pronouncement to change this. Justice Richardson argued that the Bill of Rights Act, did not require a recognition of same-sex “marriage.”

Justice Gault also felt that the Bill of Rights Act had no effect on the marriage law. Justice Gault disputed arguments that the marriage law discriminated on the basis of sex or “sexual orientation.” The reasoning behind this assertion was that the denial of a choice is not discrimination just because the person is in a protected class. Because differentiations can be an appropriate tool of social policy including the advancement of “community values” mere differentiation was not discrimination. Changing the marriage law, according to Justice Gault was a matter that was most appropriately left to the legislature. Justice Gault conceded that the law might involve marital status discrimination because benefits are denied based on marital status, but argued that even the failure to extend benefits was not in itself discriminatory.

 Justice Thomas argued that the failure to recognize same-sex “marriage” was discriminatory under the Bill of Rights but agreed with the others that a change in the law must be made by the Parliament. Justice Thomas’ rationale was that the New Zealand discrimination laws are to be understood with reasoning based on United Nations covenants and conventions. To determine whether there was discrimination, Justice Thomas enunciated a test whereby a challenged distinction must be based on a “personal characteristic” of an “individual group” and impose burdens. Justice Thomas argued that the discriminatory nature of a law can be determined by assessing its impact and that the marriage law harmed same-sex couples. Justice Thomas characterized the only justification for the current marriage law as maintaining a link between procreation and marriage, but dismissed the relevance of this rationale because some who are not married are having children. Justice Thomas then turned to a discussion of the bases for a finding of discrimination. First, Justice Thomas argued that the rights at issue are held by the couple and not merely by individuals. Thus, the current marriage law uses a sex-based classification (because it classifies on the basis of the sex of the partner). Justice Thomas had no problem concluding that the marriage law also discriminated on the basis of “sexual orientation.” To come to this conclusion, Justice Thomas argued that the “sexual orientation” of a person “dictates” their choice of a partner and that “gays and lesbians” are denied the benefits and status of marriage because of this personal characteristic of “sexual orientation” and because the denial of marriage rights stigmatizes the relationship of same-sex couples and hurts the feeling of self-worth of “gays and lesbians.” Justice Thomas concludes that same-sex couples are discriminated against in violation of the Bill of Rights Act. Interestingly, Justice Thomas argued that the failure to recognize same-sex “marriage” was analogous to anti-miscegenation laws. In addition, Justice Thomas also argued that marriage is made up of “cohabitation, commitment, intimacy and financial independence” all of which same-sex couples are capable of. Despite all of this, Justice Thomas accepted the fact that the Bill of Rights Act assigns the decision to the Legislature rather than the Court.

The fourth opinion, by Justice Keith, disputed the conclusions of Justice Thomas, and argued that the marriage law did not breach the Bill of Rights Act. Justice Keith argued that the Court should not assume that the major change occasioned by the recognition of same-sex “marriage” could have been intended by Parliament when it enacted the Bill of Rights Act. Justice Keith dismissed the “sexual orientation” argument because the decision to deny licenses was not made because of the applicant’s orientation, and the sex discrimination argument because members of both sex are treated equally by the law. Justice Keith pointed out that the right to marry discussed in UN documents is limited to opposite-sex couples. Justice Keith conceded that some rights could be given to same-sex couples in a piecemeal fashion as had already been done, but concluded that the Bill of Rights Act just didn’t reach the issue of marriage.

The final opinion, of Justice Tipping, also found no discrimination. Justice Tipping argued that traditional notions of marriage are not important to deciding whether there is discrimination but may be valuable in determining the intent of the Parliament. He also noted that the where the Bill of Rights Act is silent on a matter, Parliament has reserved the decision for itself. Justice Tipping accepted the argument made by Justice Keith that all are treated equally by the law. Justice Tipping added that if the argument that the impact of a law could establish discrimination many other groups could claim discrimination in not being allowed to marry.

Subsequently the plaintiffs forwarded a Communication to the United Nations Human Rights Committee seeking a statement that New Zealand is breaching its obligations to Human Rights under various international conventions, where it is currently pending.

Date: January 1, 2000