IN THE COURT OF APPEAL OF NEW ZEALAND CA 200/96 BETWEEN LINDSAY QUILTER and MARGARET PEARL First Appellants AND JULIET ANN JOSLIN and JENNIFER DAPHNE ROWAN Second Appellants AND SARAH JANE ANDERSON and SAMANTHA JANE COURT Third Appellants AND THE ATTORNEY-GENERAL Respondent Coram: Richardson P Gault J Thomas J Keith J Tipping J Hearing: 3 September 1997 Counsel: R E Harrison QC, N C Christie and T V Clark for Appellants N McAteer and J Johnston for Respondent Judgment: 17 December 1997 _______________________________________________________________________ JUDGMENT OF RICHARDSON P _______________________________________________________________________ The crucial question in this appeal is whether the Marriage Act 1955 allows for marriage between persons of the same sex. For the reasons given by Tipping J in his judgment, which I have had the advantage of reading in draft, I am satisfied that the scheme and language of the 1955 Act confines marriage to a union between a man and a woman. In doing so it expresses the traditional common law concept of marriage. The 1955 statute is so clear that to rely on particular perspectives of human rights and social policy values to accommodate same sex marriage would require fresh legislation, which is the function of Parliament. That is sufficient to dispose of the appeal and it is unnecessary to determine the difficult and complex question of the meaning of discrimination under international human rights instruments and New Zealand law. However, in view of the differing views expressed in other judgments I record that in agreement with Keith J and Gault J I am not persuaded that the right under s19 of the New Zealand Bill of Rights Act 1990 to freedom from discrimination requires equal legislative recognition of heterosexual and same sex marriages. The court being unanimous as to the result, the appeal is dismissed. If there are any questions as to costs counsel may submit memoranda. Solicitors: Recordon & Co, Auckland, for appellants Crown Law Office, Wellington, for respondent IN THE COURT OF APPEAL OF NEW ZEALAND CA 200/96 BETWEEN LINDSAY QUILTER AND MARGARET PEARL First Appellants AND JULIET ANN JOSLIN AND JENNIFER DAPHNE ROWAN Second Appellants AND SARAH JANE ANDERSON AND SAMANTHA JANE COURT Third Appellants AND THE ATTORNEY-GENERAL Respondent Coram: Richardson P Gault J Thomas J Keith J Tipping J Hearing: 3 September 1997 Counsel: R E Harrison QC, N C Christie and T V Clark for Appellants N McAteer and J Johnston for Respondent Judgment: 17 December 1997 _____________________________________________________________________ JUDGMENT OF GAULT J _____________________________________________________________________ The appellants are three couples in stable long-term lesbian relationships. They complain that the Registrar has unlawfully refused to accept from them notices of intended marriage under s23 Marriage Act 1955 and will refuse to issue to them the licences necessary for valid marriages by virtue of s24 of that Act. In each case the Registrar has said that the Marriage Act does not provide for marriage between persons of the same sex. For the reasons given in the judgment of Tipping J which I have read in draft, I am satisfied that the view of the Registrar is correct and that there is no unlawfulness in the stance taken. I am further in agreement that the provisions of the Marriage Act are to be given no different interpretation in light of s19 New Zealand Bill of Rights Act 1990. The Marriage Act is clear and to give it such different meaning would not be to undertake interpretation but to assume the role of lawmaker which is for Parliament. That is particularly so in an area where the law reflects social values and policy. No further comment is necessary to dispose of this appeal. However, in case I might be taken as tacitly accepting that but for the clear meaning of the material provisions of the Marriage Act the Registrar would have breached the appellantsı rights under s19 of the Bill of Rights Act, I add expressly that I do not consider that to be so. The Registrar did not refuse the notices because of the gender of the appellants nor because of their sexual orientation (if the Registrar knew it). There would have been no different reaction had the appellants been male or if they had been heterosexual and simply seeking a marriage relationship to take advantage of perceived civil benefits. They contend, however, that because of the choice of partner they have made the effect of the law preventing their marriages bears upon them and persons in like situations and not upon others and so is discriminatory. But denial of choice always affects only those who wish to make the choice. It is not for that reason discriminatory. Denial of the choice of marrying a child or someone already married could not be said to be discriminatory on the grounds of sex or sexual orientation just because a homosexual male wants to make such a choice. Discussion of choice does not assist in identifying discrimination. Either there is discrimination or there is not. If there is, it will attract the attention of the law if it affects some one or more persons. Where it does affect someone it will be because he or she has or lacks the characteristic to which the difference in treatment relates. Discrimination to which s19 of the Bill of Rights Act applies is not capable of precise definition. The grounds of discrimination are imported by reference to s21 Human Rights Act 1993. Further reference to that Act no doubt will assist in particular cases. But as is commonly said, to differentiate is not necessarily to discriminate. It is necessary to distinguish between permissible differentiation and impermissible differentiation amounting to discrimination. This is a definitional question and is to be considered before any issue of the possible application of s5 of the Bill of Rights Act arises. Discrimination generally is understood to involve differentiation by reference to a particular characteristic (classification) which characteristic does not justify the difference. Justification for differences frequently will be found in social policy resting on community values. The Marriage Act classifies as eligible to marry couples of opposite sexes. That distinguishes couples not of opposite sexes. I do not consider this to be a ground of discrimination referred to in s19. I take that view because sexual discrimination (which is the only possible ground) is directed to the gender characteristic on the basis of which different treatment is accorded whereas no different treatment here would be accorded to a person of different gender in the same situation. I take this view also because this differentiation has long been conventional in the concept of marriage as embodied in the Marriage Act and other statutes and should be ruled unjustifiable only by the legislature because of the social policy implications. Apart from these brief comments, on the scope of s19 I am content to record my general agreement with the views expressed in the judgment of Keith J which I have read in draft. Creating by law the status of child, adult, male, female is not discriminatory though there may be discrimination in the law when rights or restrictions are attached to persons having such status. So too the establishment and maintenance of the institution of marriage is not itself discriminatory. On the evidence it seems to me that the real complaint the appellants have is not that they are ineligible for licences to marry but that they are denied rights and privileges which are available to married persons. Where that is the case there may well be discrimination on the ground of marital status but that is not what we are presently concerned with. I would dismiss the appeal. Solicitors: Recordon & Co, Auckland, for appellants Crown Law Office, Wellington, for respondent IN THE COURT OF APPEAL OF NEW ZEALAND CA 200/96 BETWEEN LINDSAY QUILTER AND MARGARET PEARL First Appellants A N D JULIET ANN JOSLIN AND JENNIFER DAPHNE ROWAN Second Appellants A N D SARAH JANE ANDERSON AND SAMANTHA JANE COURT Third Appellants A N D THE ATTORNEY-GENERAL Respondent Coram: Richardson P Gault J Thomas J Keith J Tipping J Hearing: 3 September 1997 Counsel: R E Harrison QC, N C Christie and T V Clark for Appellants N McAteer and J Johnston for Respondent Judgment: 17 December 1997 _____________________________________________________________________ JUDGMENT OF THOMAS J _____________________________________________________________________ Introduction Unless within reasonable limits which can be demonstrably justified in a free and democratic society, discrimination is unacceptable in this country. In its more hurtful forms it is abhorrent. In enacting s 19 of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 Parliament has made it plain that such discrimination has no place in our society. Relying upon these fundamental statutes, the appellants in these appeals, three lesbian couples living in stable relationships, complain that they are discriminated against in that they are excluded from the status of marriage. It would be possible in deciding the appeals to leave the question of discrimination open and move directly to the terms of the Marriage Act 1955. I cannot accept that such an approach is appropriate. The only reason these appeals have arisen is because the appellants contend that they are subject to discrimination contrary to s 19 of the Bill of Rights. Unless and until that issue is resolved the question of the interpretation of the Marriage Act does not arise. Indeed, if it is found that there is no discrimination it does not arise at all. Having regard, therefore, to the essential thrust of these appeals I consider it would be unduly legalistic to rest the Courtıs decision on the meaning of the Marriage Act without squarely confronting the question of discrimination. Fairness to the appellants also dictates that they have an answer to their pleading. The question of discrimination has been confronted by courts in both the United States and Canada. Judges have differed markedly in their views. The issue is not easy. But my own thinking has been informed, not only by the submissions of Mr Harrison QC, who appeared for the appellants, and Mr McAteer who appeared for the Attorney-General, but also by the relevant jurisprudence developed in those countries. I refer, in particular, to Andrews v Law Society of British Columbia (1989) 56 DLR (4th) 1, (1989) SCR 143; Layland v Ontario (Consumer & Commercial Relations) and Others (1993) 104 DLR (4th) 214; Baehr and Others v Lewin (1993) 74 Haw. 530 (Sup Ct. Hawaii); Miron v Trudel (1995) 124 DLR 693; Egan v Canada and Others (1995) 124 DLR 609; M v H (1997) 31 OR (3d) 417; Eldridge v British Columbia (Attorney General) Unreported, Supreme Court, 24896, 9 October 1997. I have concluded that as a matter of law the exclusion of gay and lesbian couples from the status of marriage is discriminatory and contrary to s 19 of the Bill of Rights. They are denied the right to marry the person of their choice in accordance with their sexual orientation. But that is not the end of the matter. It is not possible to interpret the Marriage Act to include same-sex marriages as the appellants request. Any change in the law must come from Parliament. For that reason I have avoided policy considerations other than to the extent they are inherent in the determination of the question of discrimination pursuant to s 19. The broader policy issues are for Parliament. In developing this opinion I proceed in two parts under the following headings: Part I page 1. The right to freedom from discrimination 4 2. Discrimination 5 3. ³... of concern, respect and consideration² 7 4. The status of marriage 10 5. Discrimination under s 19 of the Bill of Rights 12 (a) Sex or gender 12 (b) Sexual orientation 15 6. Section 151 of the Human Rights Act 18 7. The effect of s 5 of the Bill of Rights 19 8. The Marriage Act 21 Part II 1. The international dimension 25 2. The essential question 27 3. Section 5 and beyond 28 4. The definitional argument revisited 29 5. No ³reasonable and objective² basis 30 6. A change in the law? 31 7. Change through legislation 32 8. A slither of history 34 9. Article 26 35 10. Article 23 38 11. The relationship of Article 26 and s 19 40 12. Conclusion 41 Because I have had the advantage of reading the draft judgment of Tipping J, I do not need to elaborate the background to the appeal. Part I 1. The right to freedom from discrimination In New Zealand, every person has the ³right² to freedom from discrimination. The right is spelt out in s 19(1) of the Bill of Rights Act 1990. The subsection reads: 19. Freedom from discrimination - (1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. Subsection (2) of the same section provides that measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination which is unlawful is not to constitute discrimination. The prohibited grounds of discrimination stipulated in s 21(1) of the Human Rights Act are sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status and sexual orientation. ³Sex² is defined in paragraph (a) of the subsection to include pregnancy and childbirth, and ³sexual orientation² is defined in paragraph (m) as meaning a ³heterosexual, homosexual, lesbian or bisexual orientation². Section 65 of the Act provides that where any conduct, practice, requirement, or condition which is not apparently in contravention of any provision in the Act has the effect of treating a person or group of persons differently on one of the prohibited grounds of discrimination in a situation where that treatment would be unlawful, the conduct, practice, condition or requirement is also unlawful unless the person responsible is able to establish good reason for it. These provisions provide legislative recognition that discrimination is offensive and forms no part of the enduring values on which our society is founded. Affirmed in the Bill of Rights, the Courts are enjoined by s 6 of the Bill of Rights to prefer a meaning to any statutory provision which is consistent with the right to freedom from discrimination. 2. Discrimination Discrimination is a nebulous and complex concept. What is or is not discrimination in any given situation is not straightforward. The objective of the legislation is apparent, however, from the Long Title to the Human Rights Act: An Act ... to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights. Thorp J pursued the reference to United Nations covenants or conventions on human rights in Coburn v Human Rights Commission [1994] 3 NZLR 323. Referring to the 1948 Universal Declaration of Human Rights and the two principal Conventions which followed, the International Covenant on Economic, Social and Cultural Rights, and the International Convention on Civil and Political Rights, all of which have been ratified in New Zealand, he concluded that, while the ³rights² which those instruments sought to advance are not amenable to simple and concise definition, their underlying nature is indicated in the Preamble to the Universal Declaration of Human Rights. It declares (inter alia): Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women... Utilising a method by which the Human Rights Committee of the United Nations has commonly developed jurisprudence under the International Convention of Civil and Political Rights, the Committee issued a General Comment in 1989 which is pertinent. In referring to the definition of discrimination in both the Convention on the Elimination of all Forms of Racial Discrimination (CERD) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Human Rights Committee stated (General Comment 18, 37th Session, 1989): 1. Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic and general principle relating to the protection of human rights... ... 7. While these conventions deal only with cases of discrimination on specific grounds, the Committee believes that the term Œdiscriminationı as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. In a comprehensive judgment, to which I pause to pay tribute, Cartwright J explored the international framework in Northern Regional Health Authority v Human Rights Commission (Unreported, High Court, Auckland, CP 157/97, 9 July 1997) at pp 23-27. The learned Judge demonstrated that there is a strong measure of congruity among the international instruments which have been the genesis of the New Zealand Bill of Rights Act and the Human Rights Act. But she stresses (at 27) that any such assistance as can be derived is just that; assistance. None of the principles, she points out, are binding on New Zealand Courts. They do, however, ³paint a backdrop against which New Zealandıs obligation and compliance can be placed². Moreover, she states, when the ancestry of the New Zealand legislation is understood it is inevitable that it must be read as broadly as necessary to comply with the overarching themes promoting and protecting human rights. No one suggests, therefore, and Mr Harrison did not suggest, that the various international covenants and conventions provide the complete answer to the question in issue. The conduct which constitutes discrimination on the ground of sex is not specified any more than is the conduct which constitutes discrimination on the ground of race, colour, religion or any other nominated ground. Rather, the international material assists to indicate the underlying nature or essence of discrimination. The covenants and conventions express the basic values which, in ordering its affairs, the community is to observe. 3. ³... of concern, respect and consideration² Why should the right to be free of discrimination be affirmed as a fundamental right of every citizen? The answer is an ideal fundamental to a free and democratic society; the ideal that everyone is equal before the law. Everyone is entitled to equal treatment under the law and to the equal protection and equal benefit of the laws of the nation without discrimination. To the extent discrimination exists, the ideal of equality before and under the law is impaired. That the ideal may never be achieved is, of course, no sound reason for not pursuing it. It remains the goal and serves to enlighten the laws enacted by Parliament and the interpretation of the law adopted by the Courts. At its heart, the attainment of equality before and under the law requires the promotion of a society in which all individuals are secure in the knowledge that they are recognised in law as human beings equally deserving ³of concern, respect and consideration². (See Andrews, supra, at 15). This concern, respect and consideration requires a commitment to the recognition of each personıs individual worth regardless of individual differences. Laws which treat individuals unfairly simply on the basis of personal characteristics which bear no relation to their merit, capacity or need are inherently discriminatory. By its nature, although not limited to the disadvantaged, discrimination bears most heavily on the socially vulnerable and marginalised members of the community. Historically it is certain that they have been disadvantaged and probable that they have been reviled. The historical attitude becomes entrenched and develops into stereotyping which then reaches into more enlightened times. But the promise of equality before and under the law remains; the promise of freedom from the subtle and ugly manifestations of stereotyping, stigmatism, prejudice and bigotry, and the realisation of the worth of human beings as deserving of concern, respect and consideration. It is a truism to point out that in a free and democratic society every individual is important. Each individual is distinct and unique. Their personal characteristics are of infinite variety and diversity. Some characteristics may appear perplexing, and even peculiar, to the comfortable and advantaged. So long as human beings live and breathe their differences will persist. But there is an ever-present danger that these differences will result in discrimination unless full recognition of the importance of the individual is accommodated in the laws of the land. Certainly, to achieve this objective tolerance is required. But much more than tolerance from the majority is needed if the commitment to equality before the law and the equal protection of the law is to be guaranteed to every citizen. Discrimination must be positively targeted by the law. It is for this reason that Parliament enacted the Human Rights Act and affirmed in the Bill of Rights that the right to freedom from discrimination is a fundamental right to be protected and promoted in this country. It is accepted that not all distinctions between individuals and groups of individuals will be discriminatory for the purposes of the guarantee in the Bill of Rights. Distinctions between people must be made if governance is to be effective and provide for the inevitable variety of differences between people and groups of which I have spoken. The enjoyment of rights and freedoms on an equal footing does not mean equal treatment in every instance (General Comment 18, supra, para 8). Subsection (2) of s 19 of the Bill of Rights recognises, for example, that measures taken for the purpose of assisting or advancing persons or groups disadvantaged because of unlawful discrimination does not constitute discrimination. Every difference in treatment between individuals necessarily results in some inequality. Furthermore, identical treatment may itself produce a significant inequality. (See Egan, supra, at 622). The existence of discrimination or otherwise can only be determined by ³assessing the prejudicial effect of the distinction against ... the fundamental purpose of preventing the infringement of essential human dignity². (Ibid, at 676). The key question, then, is not whether there is a distinction but whether the distinction which exists is based on the personal characteristics of the individual or group and has the effect of imposing burdens, obligations, or disadvantages on that individual or group which are not imposed on others. Until participation in and access to the opportunities, status, social institutions and advantages available to other members of society are assured, distinctions which treat certain persons as being less worthy of concern, respect and consideration on the basis of personal differences which are irrelevant, in effect, treats them as second-class citizens. Whether or not this is so will require a comparison to be made with other individuals or groups in the appropriate social and political setting in which the law under consideration operates. So far I have not sought to distinguish between discrimination arising from a law which in its terms discriminates against an individual or group and a law which has a disproportionately severe impact on an individual or group simply because of the particular characteristics of that individual or group. In order to give effect to the guarantee in the Bill of Rights, I do not think the distinction is particularly productive. Whether the discrimination is direct or arises because of the effect of the operation of the law on an identifiable person or minority is not of great moment in achieving the objective of equality before and under the law. Even where the law read literally may be equal in its application, it will not provide equal treatment under the law or the equal benefit of the law if its impact is inherently unequal. The essence of discrimination must be the impact of the law and not the intention behind the law. (See further Northern Regional Health Authority v Human Rights Commission, supra, at 27, 30 and 35 where Cartwright J makes the point that intention is not a necessary element of discrimination, whether direct or indirect). If the right to equality before and under the law is to be delivered, the important question is whether the law affects the individual or group in a manner which is related to their personal characteristics and those characteristics fall within the prohibited grounds of discrimination. The question whether the refusal to extend marriage to gay and lesbian couples is discriminatory must be determined having regard to these general principles. When this is done the prohibition against same-sex marriages can be seen to be discriminatory. But first I wish to touch briefly on the status or institution of marriage. 4. The status of marriage In the first place, it needs to be appreciated that marriage represents a legal status in the nature of a partnership conferred and prescribed by the state. The state has reserved to itself the power to regulate that status. The power to regulate includes the power to determine the requirements of a valid marriage, to control the capacity and qualifications of the parties to a marriage, to stipulate the formalities to be complied with before marrying, and to lay down the procedures necessary for the solemnisation of the marriage. The stateıs regulatory role is evident from the framework of the Marriage Act itself. Marriage is not defined. Rather, the provisions of the Act relating to restrictions on marriage and the formalities preliminary to marriage being solemnised are made applicable to the marriages of any person domiciled in New Zealand at the time of the marriage. (See s 3). Once this state- conferred status is obtained, the parties to it enjoy a number of exclusive rights and benefits reserved to them by the law simply because of their married status. For this reason, marriage is frequently described as an institution. More pragmatically, it is perceived as a special partnership to which each party is committed both emotionally and financially. But as the law now stands, gay and lesbian couples are denied that married status and the rights and benefits which accrue to it. The essential justification which is advanced for refusing this status to persons of the same sex is that they do not have the biologic ability to satisfy the status to which they aspire. The major or principal purpose of the institution of marriage is said to be the founding and maintaining of a family in which children will be produced and cared for, a procedure which is necessary for the continuance of the species. The ³institution of marriage as intended by the state, by religions and by society to encourage the procreation of children². (See Layland v Ontario, supra, per Greer J at 222-223). The same view is endorsed by La Forest J in the Supreme Court of Canada in Egan, (supra), a case in which the Court was evenly divided on the issue. As perceived by La Forest J, while marriage is firmly grounded in a legal tradition which reflects long-standing philosophical and religious traditions, its ultimate raison dıàtre transcends all of these and is firmly anchored in the biological and social realities that ³heterosexual couples have a unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship². In this sense, the learned Judge continues, marriage is by nature heterosexual. He acknowledges that it would be possible to legally define marriage to include homosexual couples, but claims that this would not change the biological and social realities which underlie the traditional marriage. (See Egan, supra, at 625-626). La Forest J professes to be untroubled by the fact that not all heterosexual couples have children, or wish to have children, and many more again do not regard procreation as the objective of their partnership. Nor is he diverted by the fact that some gay and lesbian couples rear and raise children. Marriage, he asserts, is the social unit that uniquely has the ³capacity² to procreate children and generally care for their upbringing and, as such, warrants exclusivity to heterosexual couples. I doubt, with respect, that shifting the emphasis to the ³capacity² of heterosexual couples to procreate children makes any significant difference. On such a view, the purpose or major purpose of marriage remains procreation. I do not apprehend that in this day and age the notion that procreation is the sole or major purpose of marriage commands significant support. While procreation, or the capacity to procreate, may be an aspect of many marriages, the definition of marriage by reference to that function ignores those facets or qualities which make up the essence of the marriage relationship, such as cohabitation, commitment, intimacy, and financial interdependence. Yet, the rejection of procreation as the sole or major purpose of marriage at once eliminates the one component which can be said to warrant the restriction of marriage to heterosexual couples. Only they can procreate. Other aspects of the marriage relationship - cohabitation, commitment, intimacy, and financial interdependence - are not unique to heterosexual relationships. Nor are a number of other qualities such as companionship, mutuality, empathy, devotion, sharing, supportiveness, and sensitivity peculiarly the property of heterosexual couples. Of course, gay and lesbian relationships need not exhibit all these qualities. Heterosexual unions also often fall short of the ideal. Good and bad relationships will be common to both opposite and same-sex unions. But unless procreation is pressed to predominate over all other attributes of the marriage relationship, the raison dıàtre (to revert to La Forest Jıs term in this context) for perceiving marriage as necessarily and exclusively heterosexual in its essential composition must fail. 5. Discrimination under s 19 of the Bill of Rights To constitute discrimination for the purposes of s 19 of the Bill of Rights, the distinction drawn between heterosexual couples and gay and lesbian couples in relation to marriage status must be attributable to their sex, or gender, or to their sexual orientation. Here, I admit to no difficulty in perceiving the distinction as discrimination. (a) Sex or gender To the extent that the Marriage Act restricts marriages to heterosexual couples it establishes a sex-based classification. It is the stateıs regulation of access to the status of marriage on the basis of the applicantsı sex which represents the discrimination. As Mr Harrison put it, the effect of the prohibition against same-sex marriages is that the female applicant is discriminated against on the grounds of her sex because, being female, she is by law unable to marry another woman, and the male applicant is discriminated against by reason of his male sex because, being male, he is by law unable to marry a man. In each case, Mr Harrison pointed out, their freedom to choose a same-sex marriage partner is discriminated against because they are of a particular sex and not of the opposite sex to their chosen marriage partner. See also Alissa Friedman, ³The Necessity for State Recognition of Same-Sex Marriage: Constitutional Requirements and Evolving Notions of Family², Vol. 3, 1987-88, Berk. Womenıs Law Jnl. 134, at p 140. While not rejecting this perspective, I perceive a danger in focusing too closely on the position of the individual in the present context. Such a focus leads to the argument that gay or lesbian persons are not discriminated against because they are as equally free as any other person to marry someone of the opposite sex. The rights, it is said, belong to and can be enforced only by the individual, thus raising what is essentially a semantic barrier for two individuals seeking to claim the enjoyment of a right in common. But I decline to accept that rights cannot be claimed by a couple, or that the couple cannot allege an infringement of those rights as a couple. A couple, after all, is simply two individuals who have formed a union. I am aware, however, that there is a considerable body of jurisprudential and academic discussion as to whether civil and political rights can be asserted by groups as distinct from individuals in those groups. The notion that rights attach to the individual has its origin in the ideal of guaranteeing to individuals certain rights and freedoms against the power of the state. But this does not mean that a number of rights are not exercised in association with others. (See P Hogg, Constitutional Law of Canada (3rd Ed, Supp.) para 41.3). It is not unrealistic to recognise that the individualıs ³right² may be shared with others. Rights do not exist in isolation and many have a relational aspect to them. Whilst the right may apply to an individual, it is that individualıs relationship to another person which gives rise to the right. Both the Bill of Rights and the Human Rights Act recognise that rights may relate to a number of persons. Sections 15, 16 and 17 of the Bill of Rights, for example, relating to the right to manifest a personıs religious belief either individually ³or in community with others², to freedom of peaceful assembly, and to freedom of association, respectively, contemplate a grouping of one kind or another. Section 20, providing for the rights of minority groups, acknowledges that a person who belongs to an ethnic, religious or linguistic minority is not to be denied the right ³in community with other members² to enjoy the culture, religion or language of that minority. Subsection (2) of s 19 itself refers to measures taken to assist persons or ³groups of persons² disadvantaged because of discrimination. Similarly, human rights embrace but are not restricted to individual rights. The relational aspect of rights, for example, is demonstrated by the existence of ³family rights², which predicate a sufficient link between the persons concerned. (See s 21(1)(l)(iii) of the Human Rights Act). Moreover, s 65 of the Human Rights Act specifically refers to discrimination which has the effect of treating a person or ³group of persons² differently on one of the prohibited grounds. Canadian Courts also refer to discrimination against both the individual and the group. Discrimination is described as a distinction based on grounds relating to the personal characteristics of the ³individual or group². The right is seen to adhere, not only to the individuals in the group, but to the group as a whole. (See Andrews, supra, at 18, Egan, supra, at 620-1, 637, 639-41, 662-3, and 671-2). The right to be free of discrimination is a classic example of a right which does not exist in isolation. By its very nature discrimination must have a context and it is that context that will determine whether or not a distinction or apparent disadvantage is prohibited discrimination. A wider picture is necessary to establish that it is discrimination rather than a legitimate distinction between individuals. In all, therefore, it would be a stilted view of fundamental human rights if such rights were guaranteed to individuals only. Discrimination may equally be directed at a group, and in reality this is the form that discrimination frequently takes. It is the group as well as the individuals which will have been historically disadvantaged and marginalised and which will be vulnerable to discrimination. Whatever difficulties are perceived in respect of groups asserting a right, however, I do not think those difficulties should be applied to a couple. Each of the coupleıs right is intrinsically related to and parallels the identical right of the other. Both can rely on their individual right, but to the extent the right which they seek to assert is a common right, they should be able to pursue it as a couple. Do rights not inure to a married couple as a couple? Rights by their very nature should not be so sharply defined. Thus, I can see no sound reason why a couple, united in their intention to form an enduring relationship in the nature of marriage, cannot as a couple claim that they are being discriminated against on the ground of their sex or gender. Whether one adopts the approach urged upon the Court by Mr Harrison, or focuses on the applicantsı rights as a couple, the discrimination fairly can be said to be based on their sex. (b) Sexual orientation Whatever hesitation may exist to basing the discrimination on the ground of sex, one cannot seriously resist the proposition that gays and lesbians are discriminated against on the ground of sexual orientation. Just as the sexual orientation of heterosexual men and women leads to the formation of heterosexual relationships, so too it is the sexual orientation of gays and lesbians which leads to the formation of homosexual relationships. Sexual orientation dictates their choice of a partner in both cases. To a heterosexual person that sexual orientation can lead to a valid marriage relationship; to a gay or lesbian person it cannot. Representing themselves as sharing in a relationship which is to all intents and purposes a marriage relationship, they are treated differently from persons or a couple with a heterosexual sexual orientation. It is the sexual preference of gays and lesbians and their resulting choice of a same-sex partner that makes them vulnerable to discrimination. Based upon this personal characteristic, gays and lesbians are denied access to a central social institution and the resulting status of married persons. They lose the rights and privileges, including the manifold legal consequences which marriage conveys. They are denied a basic civil right in that freedom to marry is rightly regarded as a basic civil right. They lose the opportunity to choose the partner of their choice as a marriage partner, many again viewing the right to choose as a basic civil right of all citizens. In a real sense, gays and lesbians are effectively excluded from full membership of society. But the denial of the opportunity for gay and lesbian couples to marry should not be seen solely in terms of a denial of access to an important social institution, a special status, the resulting legal consequences and benefits, or to civil rights and freedoms. It has a personal dimension which is not difficult to understand. With many gay and lesbian couples the inability to marry must impinge on almost all aspects of their lives. It can only add to the stigmatisation of their relationship and have a detrimental effect upon their sense of self-worth. In the United States, the freedom to marry has long been recognised as ³one of the vital personal rights essential to the orderly pursuit of happiness by free people². (See Loving v Commonwealth, 388 US, at 2, 87 S. Ct., at 1819). Gay and lesbian couples are denied that pursuit. The argument that gay and lesbian persons are not discriminated against because they are free to marry persons of the opposite sex is unconvincing. Indeed, I believe it is lacking in logic. The argument first assumes a definition of marriage which excludes gay and lesbian persons so as to then hold that they are not excluded from marriage. Thus, the argument is circular. To claim that the fact gays and lesbians do not want unions with persons of the opposite sex is the result of their own sexual preferences and not a requirement of law is to beg the question whether they are denied equal treatment under the law and the equal benefit of the law in not being able to marry persons of the same sex in accordance with their sexual orientation. It is to avoid the very issue which the Marriage Act raises. The circular and question-begging nature of the argument can be illustrated by substituting the parties race for their sexual orientation. Could it be seriously contended that if the Marriage Act prohibited the marriage of a person of one race to a person of another race, it would not be discriminatory on the grounds of race? Such a case occurred in the United States. The State of Virginia had enacted miscegenation laws banning inter-racial marriages. A black man and a caucasian woman married, aptly named the ³Lovings². They were charged and convicted under the Stateıs miscegenation laws. In his decision the trial Judge claimed in substance that Divine Providence had not intended that the marriage state extend to inter-racial unions. He said (ibid, at 3, 87 Sup. Ct., at 1819): Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. Not satisfied with this version of Divine Providence, the Lovings appealed to the Supreme Court of the United States. Holding that there could be no question but that Virginiaıs miscegenation statutes rested solely on distinctions drawn according to race, the Supreme Court struck the laws down on the ground, inter alia, that the Lovings were denied the equal protection of the law. Clearly, the Supreme Court was not persuaded by the argument that, because marriage was defined to exclude inter- racial marriages, the law was not discriminatory because everyone was free to marry persons of the opposite race! The same reasoning must apply in this case. Sex and sexual orientation are, along with race, prohibited grounds of discrimination. Another suggestion raised in the course of argument may be quickly dispatched. It was suggested that the Marriage Act does not discriminate against gays and lesbians any more than any other specified restriction. Being unable to marry a person of the same sex is put on a par with the prohibition against marrying a person within the prohibited degrees of consanguinity, marrying a person under the age of 16, marrying a person who because of mental incapacity is incapable of giving consent, or marrying a person who is already married. Any person who wishes to marry anyone within these prohibited categories, it is argued, is denied the partner of his or her choice as much as a gay or lesbian person seeking to marry a same-sex partner. Apart from the fact the analogy with persons who are under-age, mentally incapable, or bigamists is demeaning to gays and lesbians, I believe the proposition only has to be stated to be seen to be self-evidently untenable. In the first place, it is a variation of the circular or question-begging argument referred to earlier. By beginning with a definition which excludes same-sex marriages the conclusion is reached that the law cannot be discriminatory as it applies to everyone. Again, the same reasoning would apply if the Marriage Act prohibited inter-racial marriages. Secondly, even if it is allowed that the inability of any person to marry a person within the prohibited degrees of consanguinity, under the age of 16, mentally incapable, or already married, are distinctions under the law, it does not constitute discrimination. It will be recollected that not every distinction amounts to discrimination. The key question is whether the distinction or differentiation has the effect of imposing burdens, obligations or disadvantages on some individual or group not imposed on others. Thus, in respect of a ³marriage² to a person who is under age or mentally incapable, for example, there are no other individuals or groups who are able to marry such persons. The prerequisite of informed consent cannot be met whatever the sex, sexual orientation, race, colour or creed of the person proposing the marriage may be. The comparison which is required to be made with other individuals and groups ³in the appropriate social and political setting in which the law operates² cannot be made. With gays or lesbians who wish to marry the person of their choice, however, there are others with whom the comparison can be made; namely, heterosexual persons who wish to marry the person of their choice. Based on sexual orientation, the distinction inherent in the Marriage Act and the many enactments which then confer rights and benefits on married persons undoubtedly discriminates against gays and lesbians. The concern, respect and consideration implicit in the goal of equality before and under the law is lacking. In the result, gays and lesbians do not receive equal treatment under the law or the equal benefit of the laws of this land. My conclusion is that as a matter of law, as well as of logic, gay and lesbian persons and couples are discriminated against contrary to s 19 of the Bill of Rights. 6. Section 151 of the Human Rights Act Section 151 of the Human Rights Act cannot be invoked for the purpose of suggesting that the provisions of that Act do not yet apply to the Marriage Act or that it is unnecessary to deal with the question of discrimination in this Courtıs decision. Subsection (1) of s 151 was carried forward from the Human Rights Act 1977. Its purpose is to ensure that provisions which are contrary to the non-discrimination provisions of the Human Rights Act in legislation already in force, or in any new legislation, prevail over the Human Rights Act. Section 151(2) is a new provision. Its purpose is to give the Government a period of grace so as to allow it the opportunity to comply with the Human Rights Act in respect of the new grounds of discrimination. This subsection relates to the administration of government and clearly has no application to the present case. It is the interpretation of the Marriage Act which is in question. But subs (1) has no application either. As Tipping J points out, if on its true construction the Marriage Act discriminates against same-sex couples, the Court cannot intervene. Section 151(1) is similar in effect to s 6 of the Bill of Rights. For my own part, however, I do not think that it is tenable to argue that s 151 derogates from the force and effect of s 19 of the Bill of Rights. That section provides that everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act. By virtue of s 151, therefore, nothing in the Human Rights Act is to ³limit or affect² that provision. Thus, s 19, incorporating, as it does, the prohibited grounds of discrimination in the Human Rights Act, is paramount. If there were any doubt about the matter, then s 151 would, by virtue of s 6 of the Bill of Rights, have to be given that meaning as it is the only meaning which is consistent with the ³rights and freedoms² contained in s 19 of the Bill of Rights. 7. The effect of s 5 of the Bill of Rights Section 5 of the Bill of Rights provides that the rights and freedoms contained in the Act may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The question arises whether reference to s 5 should be made before or after a determination whether there is a breach of s 19. If it is made before, and it is decided that the exclusion of gays and lesbians from the status of marriage can be justified in a free and democratic society, the prohibition against same-sex marriages need not be necessarily perceived as discrimination. If, on the other hand, the question is disposed of by reference to ss 19 and 21, without regard to s 5, discrimination may be found to exist, but could then be held to be justified within the meaning of s 5. In R v Noort [1992] 3 NZLR at 260, members of this Court differed in their views on the operation of s 5. Cooke P and Gault J took the view that s 5 had no application in determining the scope of the right in question. Either the rights without limitation could be read consistently with the legislative provision or they could not. Richardson J, as he was then, and Hardie Boys and McKay JJ, took the view that regard should be had to s 5 before a violation of the Bill of Rights Act is found to exist. Notwithstanding those differences, however, all members of the Court agreed that the nature of the right in question, and the scope of its operation in general, must be looked at first. Moreover, those members who in principle supported the limitation being placed on rights held that it was only after the initial process of determining the scope of the right had been completed that s 5 came into play. As Richardson J pointed out, ³s 5 guards those rights by insisting that they may be regarded as modified only where the stringent tests laid down are met.² (See also the same difference in approach in Egan, supra). I have decided it is not necessary to address or seek to resolve this issue in this case because of the particular nature of the alleged violation involved. I accept that it would be possible to hold that the exclusion of gays and lesbians from the status of marriage is prima facie discrimination under s 19. After considerable reflection, however, I have decided not to limit my finding in that manner. The exclusion of gays and lesbians from the status of marriage is discrimination on the grounds of sex or sexual orientation and cannot be qualified by reference to s 5. Whatever role is ascribed to s 5, it can make no difference to the outcome. By its very nature discrimination on any of the grounds specified in s 21 cannot be open to justification in a free and democratic society. What I had to say in Part I under the heading ³... of concern, respect and consideration² is particularly pertinent. Differentiations which are discriminatory cannot be reconciled with the democratic ideal of equality before and under the law. Discrimination in all its forms is odious. It is hurtful to those discriminated against and harmful to the health of the body politic. As such, it is or should be repugnant in a free and democratic society. There are, in other words, no ³reasonable limits² prescribed by law which could be demonstrably justified in a free and democratic society. Discrimination and democracy are inherently antithetical. Whatever justification is advanced to justify the exclusion of gays and lesbians from the status of marriage, therefore, cannot be properly attached to the criteria in s 5. The impact of that section lies elsewhere than in respect of discrimination. This line of thinking is in accord with the Siracusa Principles in international law. A group of 31 distinguished experts in international law, convened by a number of august international legal bodies, was convened in Siracusa, Sicily, in 1984. The outcome was ³The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights². Under the heading ³General Interpretative Principles Relating to the Justification of Limitations², it is provided that the scope of a limitation referred to in the Covenant is not to be interpreted so as to jeopardise the essence of the right concerned. It is further recognised that all limitations are to be interpreted in the light and context of the particular right concerned. The expression ³in a democratic society² is to be interpreted as imposing a further restriction on the limitation clauses it qualifies. The burden is upon a state imposing limitations so qualified to demonstrate that the limitations do not impair the democratic functioning of the society. Applying these principles to the present case would mean that s 5 would not be available to limit the right to freedom from discrimination contained in s 19. Viewing marriage, therefore, as a relationship involving such facets or qualities as cohabitation, commitment, intimacy, and financial independence and one recognised by the state as conferring a special status with a number of consequential legal benefits, there can be no sound reason for excluding a section of the community who, notwithstanding that they are of the same sex, are able to enter into comparable relationships. So long as they are excluded, they are discriminated against on the grounds of their sex or sexual orientation. 8. The Marriage Act Holding that the present law discriminates against gays and lesbians means that, by virtue of s 6 of the Bill of Rights, the Court must prefer an interpretation of the Marriage Act which is consistent with the right of everyone to be free of such discrimination. I agree that where a breach of a fundamental right or freedom enshrined in the Bill of Rights is found to exist in any statute the Court should conscientiously strive to arrive at a meaning which will avoid that breach. Subject only to s 5, Parliament clearly intended no less with the enactment of this fundamental constitutional document. In interpreting and applying ss 21 to 25 of the Bill of Rights, this Court has constructed a comprehensive and far-reaching jurisprudence designed to protect the rights of those persons who are suspected of an offence or arrested and charged with a crime. It behoves the Court to demonstrate the same commitment to the promotion and protection of other rights and freedoms equally affirmed as fundamental in the Bill of Rights. The Bill of Rights is not to be seen simply as a ³Roguesı Charter². (See Professor D M Paciocco, ³The Pragmatic Application of Fundamental Principles: Keeping a Roguesı Charter Respectable² in The New Zealand Bill of Rights Act 1990 (1992) Legal Research Foundation, at p 1). Even adopting this approach in the present case, however, I am unable to interpret the Marriage Act in the manner sought by the appellants. The Bill of Rights is not a supreme law. The legislative history of the Bill of Rights is well-known. Parliament expressly rejected a Bill of Rights which would enable the Courts to strike legislation down as invalid on the ground it is contrary to the Bill of Rights. Parliamentary or legislative supremacy was deliberately retained by the legislature. This Court has an interpretative role and while it must, in accordance with Parliamentıs direction prefer a meaning to any statutory provision which is consistent with the Bill of Rights, it cannot adopt a meaning which is clearly contrary to Parliamentıs intent. So it is here. I accept that Parliament intended the Marriage Act to apply to conventional marriages, that is, marriages of men and women, and that must remain the meaning to be ascribed to the term today. For myself, I do not need to go beyond the common usage of the word ³marriage². Not every word requires definition. The meaning of some words, such as, for example, ³husband² and ³wife², are so well- established that no explication is required to ascertain their meaning. Parliament used, and continues to use, the word ³marriage² in its common meaning. Although I consider this meaning is plain on its face, I also endorse the aids to interpretation found in both the Marriage Act and other enactments Tipping J has so ably traversed in his judgment. They confirm no other meaning is possible without usurping Parliamentıs legislative supremacy. Declining to strain the meaning of the Act does not mean that this Court is shirking its responsibility to apply s 6. That section does not authorise the Court to legislate. Even if a meaning is theoretically possible, it must be rejected if it is clearly contrary to what Parliament intended. Consistently with what I have said above relating to the legislative history of the Bill of Rights and the Courtıs role, it remains for Parliament to decide whether or not legislation is required to extend marriage to gay and lesbian couples. That is a question weighted with policy considerations of the kind Parliament is both constitutionally and practically equipped to decide. Thus, once it is accepted that the exclusion of gays and lesbians from the status of marriage is discriminatory, the question whether the law should be changed and, if so, in what manner, are questions for the legislature, not this Court. The numerous and competing policy considerations are for it to weigh and determine. Moreover, I acknowledge that in a democracy factors relating to the general acceptance of the measure, the possible ramifications or repercussions of legislation, and the timing of any change in the law cannot be disregarded. The enlightened approach which the Courts are prepared to adopt without trespassing on Parliamentıs domain is illustrated by two recent English cases. In re W (A Minor) (Adoption: Homosexual Adopter) (1997) 3 WLR 768, Singer J concluded that the Adoption Act 1976 (UK) permitted an adoption application to be made by a single applicant, whether he or she at that time lives alone, or cohabits in a heterosexual, homosexual or even an asexual relationship with another person who it is proposed should fulfil a quasi- parental role towards the child. Parliamentıs intention emerged from the terms of the legislation. The other case is the decision of the Court of Appeal in Fitzpatrick v Sterling Housing Association Ltd (Unreported, 23 July 1997). The short question raised in that appeal was whether the surviving partner in a stable and permanent homosexual relationship could claim succession rights pursuant to the Rents Acts under which the deceased partner was a protected tenant. By virtue of the wording of the statute, the central issue was whether the sexual partner of the same sex could be described as a member of his or her ³family². The three judgments are remarkable for their appreciation of the modern concept of family and the need to recognise in both logic and humanity the status of a partner in a lesbian or gay relationship. Referring to the law regarding the extension to husbands and wives of succession to statutory tenancies, Waite LJ held that it was ³offensive to social justice and tolerance because it excluded lesbians and gays². It was, he said, ³out of tune with modern acceptance of the need to avoid any discrimination on the ground of sexual orientation². But the learned Judge felt that a change could only be made by Parliament. Roch LJ also considered that the issue should be left to Parliament. The third Judge, Warde LJ, took the view that the meaning of the word ³family² was sufficiently fluid and dynamic to allow the Court to include gay and lesbian couples within its meaning. In the course of a judgment ranging over the common law, Canadian jurisprudence and international obligations, he held that to exclude same-sex couples from the protection of the Rents Acts would proclaim the inevitable message that society judges their relationship to be less worthy of respect, concern and consideration that the relationship between members of the opposite sex. The fundamental human dignity of the homosexual couple, he said, is severely and palpably affected by the impugned distinction, which is drawn on grounds relating to their personal characteristics, that is, their sexual orientation. He added that ³no distinction can sensibly be drawn between the two couples in terms of love, nurturing, fidelity, durability, emotional and economic independence - to name but some and by no means all of the hallmarks of a relationship between a husband and wife². Warde LJ concluded: In my judgment our society has shown itself to be tolerant enough to free itself from the burdens of stereotype and prejudice in all their subtle and ugly manifestations. The common man may be vaguely disapproving of the homosexual relationship which is not for him but, having shrugged his shoulders, he would recognise that the relationship was to all intents and purposes a marriage between those partners. They lived a life akin to that of husband and wife. ... I, too, agree that Parliament is the appropriate body to consider any change to the law in this case. Part II 1. The international dimension In Part I of my judgment, under the heading of ³discrimination², I referred to the international covenants or conventions and adverted, in particular, to the judgment of Cartwright J in Northern Regional Health Authority v Human Rights Commission, supra, in which the learned Judge explored the international framework. I concluded with the observation that, although the conduct which constitutes discrimination on the nominated grounds is not specified, the international material assists to indicate the underlying nature or essence of discrimination. The covenants and conventions express the basic values which, in ordering its affairs, the community is to observe. Since writing Part I, I have received the draft judgment of Keith J. After adverting to the complexity of the principles of non-discrimination and inequality, the historical reluctance of the common law to prohibit discrimination, and the past particularistic approach to discrimination in the International Covenant of Civil and Political Rights (ICCPR), in particular, Articles 26 and 23, the learned Judge arrives at the conclusion that the exclusion of gays and lesbians from the status of marriage is beyond the ³reach² of s 19. I consider that both this conclusion and the path by which the Judge arrives at it are unsustainable. It is necessary, therefore, to be more discursive than I had hoped to be and to expand on the background and international material in order to maintain the integrity of my finding to the contrary in Part I. Keith Jıs draft judgment contains much which is not in dispute or which stops short of the areas which are in dispute. Thus - … I accept that the principle of freedom from discrimination is a complex principle; indeed, I say just that in Part I, but I would respectfully suggest that care is needed not to graft greater complexity on to the principles of equal treatment and equal protection of the law than is justified; … I accept that problems in the area of discrimination cannot be resolved by ³neat² formulas; far from it, but I do assert that to protect fundamental human rights in New Zealand decisions must necessarily be made pursuant to the Bill of Rights as to whether or not those rights are being denied to its citizens; … I accept that the concept of marriage which is statutorily recognised in the Marriage Act is heterosexual marriage; I assert that very conclusion; … I accept that ³context² is critically important; indeed, I contend in Part I that to determine whether discrimination exists a comparison is required with other individuals or groups in the appropriate social and political setting in which the law under consideration operates; … I accept that the common law has been reluctant or tardy in preventing discrimination on the grounds of race or religion; indeed, I would go further and suggest it has been recalcitrant, and that it is the common lawıs default, at least in large part, which has led to the adoption of a statutory regime to better protect the fundamental human rights of the individual; … I accept that the question whether the law should be changed to authorise marriage between gays and lesbians is a question for Parliament; in fact, I positively assert in Part I that the issue is heavily weighted with policy considerations and should be left to the legislature; … I do not rule out that changes to the law should be made gradually or incrementally; rather, I contend in Part I that the decision whether to proceed at once with a change to the definition of marriage or to change the law gradually is a decision for Parliament to make, not this Court; … I do not suggest that all distinctions in the law amount to discrimination; on the contrary I expressly stated in Part I that not all differentiations in the law amount to discrimination and I relied largely on international material and the Canadian jurisprudence to provide the test or method by which it can be determined whether a differentiation represents discrimination or not; and … I do not suggest that, if this Court were to hold that the exclusion of gays and lesbians from the status of marriage is discriminatory on the grounds of sex or sexual orientation, the basic elements of marriage would be ³indirectly² changed; on the contrary, the law would remain as before until changed by Parliament. With the areas of agreement noted, I can turn to those matters where my research and thinking departs from the reasoning and material in Keith Jıs draft judgment. 2. The essential question The question which the appellants have put in issue is whether the exclusion of gays and lesbians from the status of marriage is discriminatory on the grounds of sex or sexual orientation in terms of s 19 of the Bill of Rights and s 21 of the Human Rights Act. It is, I believe, important to face up to and answer that question. Yet, the grounds set out in s 21(1)(a) and (m) of the Human Rights Act (as referred to in s 19), that is, discrimination on the grounds of sex and sexual orientation, receive only passing mention in Keith Jıs draft judgment. Contending that s 19 does not ³reach² to this essential question because Parliament could not have intended to effect such a major change to such a fundamental institution by enacting that section avoids the hard question whether or not the law is discriminatory. The focus is shifted from the question of the effect of a law on a minority of citizens to what Parliament might or might not have contemplated when enacting s 19. In fact, Parliament was concerned to proclaim everyoneıs right to freedom from discrimination on the prohibited grounds and, understandably, did not direct its mind to whether particular situations would or would not amount to discrimination. Nor is the key question confronted by tracing the tardiness of the common law to deal with discrimination and the present hesitancy of the international or local community to accept that the status of marriage should be open to gays and lesbians in enduring relationships. By their very nature the basic rights and freedom of individuals and minority groups do not depend on the endorsement of the community or acceptance by the majority. Fundamental rights and freedoms are not a matter of consensus. A majoritarian notion of ³morality² is not a sufficient basis to deny an unpopular minority the equal protection of the law. Indeed, it is because they are a minority and likely to be politically powerless that they require the protection of the law and equal treatment under the law. The majoritarian approach was rejected by the Supreme Court of the United States in Romer v Evans, 116 S.Ct. 1620 (1996) as an extremely illiberal argument contrary to the basic democratic assumption that majorities are not always right. In his dissenting opinion, although there was no disagreement on this point, Blackmun J criticised majoritarian justifications for discriminatory laws in these terms (at 214): ³... depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our nationıs history than tolerance of non-conformity could ever do². (See also Andrew Griffin, ³Another Case, Another Clause - Same-Sex Marriage, Full Faith and Credit and the U.S. Supreme Courtıs Evolving Gay Rights Agenda² (1997) Public Law 315, at pp 319 and 325). 3. Section 5 and beyond I have already outlined my approach to s 5 of the Bill of Rights in relation to the issue in this appeal. In his draft judgment, Keith J expressly claims to arrive at the conclusion that the exclusion of gays and lesbians from the status of marriage is not in breach of the right to freedom from discrimination as that right is stated in s 19 without invoking the ³limitation provision of s 5². In my respectful view, part of the learned Judgeıs reasoning which then follows could be said to fall within s 5 in that it is directed at demonstrating that the prohibition of same-sex marriage is justified, at least at the present time. Much more of the reasoning, I accept, goes further. It is not directed at whether the prohibition is reasonably justified in a free and democratic society but involves questions of the kind which could be described as ³political² policy. For example, the question whether any change in the law should occur gradually or incrementally or by a change to the definition of marriage is largely a political question. So, too, the question whether s 19 requires equal legislative recognition of heterosexual and same-sex marriages is a question for Parliament. Further, of course, s 5 could not be approached without having regard to the Siracusa Principles which I mentioned in Part I. In a real sense, therefore, a jurist seeking to justify the exclusion of gays and lesbians from the status of marriage is placed in a quandary. Discrimination on any of the prohibited grounds is inimical to a free and democratic society. Justification must be sought elsewhere. Inevitably the jurist is led into areas of policy, such as the timing of any change to the law, the method by which the law should be changed, and the general acceptance or receptiveness of the community to any such law change. At once, the jurist will appreciate that he or she has strayed beyond the bounds of legal inquiry into the foreign territory of ³political² policy. 4. The definitional argument revisited I have already commented in Part I upon the circulatory of the argument which proceeds from the perception or definition of marriage as an institution necessarily restricted to persons of the opposite sex. The tautology is revealed in the Canadian cases which I referred to. Yet, I respectfully suggest that this argument is revisited in Keith Jıs draft judgment. Beginning with a definition of marriage which holds that marriage is inherently heterosexual, the answer is inescapable. What prevents gays and lesbians from marrying, it is said, is not the law but the fact they are incapable of entering into a marriage as that term is defined by the law. What is not decided with this circular argument, however it is refined, is whether there is any legitimate basis for excluding gays and lesbians from the status of marriage having regard to the statutory prohibition against discrimination on the grounds of sex or sexual orientation. At root, the prohibition of same-sex marriage depends on a functional definition of the marriage relationship which excludes all the characteristics, other than procreation, which go to make up an enduring relationship of any couple of whatever sex. 5. No ³reasonable and objective² basis By approaching marriage, as I have suggested in Part I, as essentially a relationship involving such features as cohabitation, commitment, intimacy and financial interdependence, and applying to that relationship the criteria accepted by the Human Rights Committee, a different and more compelling answer unfolds. I will be dealing with the Committeeıs approach later. For the present, it will suffice to extract the criteria from the manner in which the Human Rights Committee has interpreted the prohibition of discrimination in Article 26. The Articleıs purpose, in the Committeeıs view, is to prohibit discrimination which lacks any objective and reasonable basis. For example, in Broeks, Comm. para 13, the Committee stated that a ³differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26². (See also the cases and material referred to in Manfred Nowak, U.N. Covenant on Civil and Political Rights - CCPR Commentary, (1993 - Engel) at 469-475). What, then, is the reasonable and objective criteria which prevents a prohibition of same-sex marriages from being discriminatory of gays and lesbians? It can only be the biologic inability of gays and lesbians to procreate. The Crown put it bluntly in its written submission; ³it [marriage] is a paradigm which has at its core procreation and the rearing of children². (To be fair, counsel retreated somewhat from this claim in the course of oral argument, but could not suggest any other functional difference between a heterosexual and homosexual relationship). Any attempt to find a ³reasonable and objective² basis for the differentiation based on the function of procreation and so avoid the charge of discrimination must surely fail, simply because it is unreal and unfair to define marriage in such restricted terms. The essence of marriage is to be found in the nature of the relationship, not in some biological purpose. 6. A change in the law? In his draft judgment Keith J states that Parliament would not have effected such a major change to a fundamental institution in our society and legal system, with a great number of consequential changes, in such an indirect way. The general language of s 19 is seen to be a remarkably indirect way to effect such a major change in a basic social, religious, public and legal institution or to interfere with the ³basic elements of marriage². Parliament, it is said, would not have chosen such an indirect route to introduce such a major change. The matter would have been introduced in a much more direct way by specifically altering an element of the accepted definition of marriage or by making more widely available the relevant incident of the statutes. With respect, I consider that this reasoning confuses Parliamentıs intent in enacting s 19 with the question which s 19 poses; is there a breach of the fundamental right to freedom from discrimination on the grounds of discrimination as set out in the Human Rights Act? In passing s 19, Parliamentıs intent was to confer the fundamental right to be free of discrimination on every citizen. It did not purport to change any law. Thus, under paras (a) and (m) of s 21(1) of that Act its specific intent was to confer the fundamental right to be free from discrimination on the grounds, inter alia, of sex and sexual orientation on everyone. Whether or not there is a breach of those grounds is for this Court to decide. In other words, the ³basic element² in the definition of marriage under the Marriage Act remains; it is restricted to parties of the opposite sex, but for the purpose of s 19 the question whether that element is discrimination on the grounds of sex or sexual discrimination also remains. To my mind, therefore, it is quite wrong and, indeed, misleading to suggest that an affirmative answer to the question in issue would effect a change in the law relating to marriage. Section 19 does not feign to be an amending Act. It does not purport to amend the Marriage Act. Any change to the legal definition of marriage must come from Parliament. It has not been brought about by s 19, and it cannot be brought about by recognising that the exclusion of gays and lesbians from the status of marriage is discriminatory within the meaning of paras (a) and (m) of s 21(1). 7. Change through legislation The suggestion in Keith Jıs draft judgment that a change to the law is more appropriately achieved through legislation, with an apparent preference for incremental change, also begs the question in issue and is not a question which the Court should seek to answer. As I have said in Part I, it is a matter which should be left to Parliament. Parliament may decide to amend the definition of marriage, it may decide to amend the law, or the incidence of the law, bearing oppressively or unfairly on gay and lesbian couples incrementally, or it may decide to pass legislation in the form of the Danish Registered Partnership Act 1989, the Swedish Homosexual Cohabitation Act 1987, or the Norwegian Act on Registered Partnerships for Homosexual Couples 1993, or it may decide to do nothing at all. Accepting that any change should be made by legislation does not mean that the existing law is not discriminatory against gays and lesbians. I must accept, of course, that a finding by this Court that the exclusion of gays and lesbians from the status of marriage constitutes discrimination on the ground of sex or sexual orientation could result in pressure on Parliament to change the law. Conceivably, it could attract the attention of the Human Rights Committee. But if this is the fear, then that fear should be openly stated. It is not a reason to resist making a decision whether that exclusion amounts to discrimination on the grounds of sex or sexual orientation. I agree with Keith J that David L Chambers recent contribution, ³What If ? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples² (1996) 95 Mich LR 447, is a valuable article. It would be quite wrong to suggest, however, that Chambers considers that the prohibition against same-sex marriage is not discriminatory. Indeed, he describes legislative action to that effect as ³meanspiritness². He recognises that it seems to be motivated by ³views about some Œinherentı meaning of marriage and by views about the social unacceptability of gay people in gay relationships². Observing that the reader ³will encounter occasional ghosts from an authoritarian and formally gendered past², Chambers undertakes a comprehensive survey of the statutory and regulatory legal advantages (and occasional disadvantages) which attach to marriage, and finds that the number of significant distinctions resting on marital status remains large and durable. Permission for same- sex couples to marry under the law would, he argues, signify the acceptance of lesbians and gay men as equal citizens more profoundly than any other non- discrimination laws that might be adopted (at p 450). He expressly seeks to make a case for gay and lesbian couples to have the opportunities and choices which the regime of marriage offers as ³a package² to much the same degree as is the case in respect of heterosexual couples (at p 486). Consequently, Chambers closing comment quoted by Keith J that ³all desirable changes in family law need not be made at once² needs to be read in context. At this point Chambers is referring to ³romantic units² of more than two persons, about which he admits to being ³queasy², and argues that the fact the state unwisely ignores or prohibits certain relationships in addition to those of lesbian and gay couples does not make it inappropriate to advocate for the recognition of gay and lesbian couples today (at p 491). The next appropriate step, he states, is the step he has discussed in his article - ³the recognition of same-sex couples who wish to marry². Permitting same- sex marriage, he continues, will be to make society more receptive to the further evolution of the law. Hence, Chambers sees the recognition of same-sex marriage as the next incremental step in this broader evolution of the law. He does not advocate or suggest that the legitimacy of same-sex marriages should be arrived at incrementally. Finally, under this heading, Keith Jıs references to s 5 of the Domestic Violence Act 1995 and s 111 of the Electricity Act 1992 are of some assistance. Both indicate a response by Parliament to a situation which would otherwise be unfairly discriminatory of persons in a relationship in the nature of marriage but not able to be legally married. Thus, to exclude a person living in a gay and lesbian relationship from the protection which the Domestic Violence Act provides in respect of domestic violence would be to discriminate against that person on the grounds of their sex or sexual orientation. My point, of course, is not to either extol or condemn legislation in this form, because that is not the Courtıs function, but simply to observe that such legislation implicitly recognises the discrimination which would exist against gay and lesbian couples unless they are deemed to be capable of living together in a relationship in the nature of marriage. 8. A slither of history Excursions into history and a review of the reluctance of the common law to prohibit discrimination are necessarily of limited, if any, value in determining whether the exclusion of gays and lesbians from the status of marriage amounts to discrimination on the grounds of sex or sexual orientation. History, in general, has not been kind to minorities. People who, because of their religious beliefs, ethnic background, nationality, colour, race, sex, or sexual orientation, could be described as ³different² have not fared well. As I pointed out in Part I, these persons are the socially vulnerable and marginalised members of the community who have been most oppressed by discrimination. It is simply because the basic civil and political rights of these disadvantaged and, at times, reviled people have not been accorded the concern, respect and consideration human dignity demands that the human rights movement has flourished. The international community and its participating states have sought to guarantee to all persons their fundamental rights. For the most part, to look to history to determine whether discrimination exists on the grounds of sex or sexual orientation, or any other ground, is to look to the cause to resolve the effect. Further, if regard is to be had to history there is no reason why the perspective taken should be selective or limited. For example, scholars such as William Eskridge and John Boswell have pointed out that the perception of marriage as a heterosexual institution is a contemporary perception. In ancient Greece, Mesopotamia, Rome and even Christian states, same-sex unions were accepted and even celebrated. (See Griffin, supra, at 325). Until the 13th Century little hostility to homosexuality apparently existed. Boswell reports that intolerance of any distinction from the standards of the majority did not manifest itself until the second half of the twelfth century. Hostility towards gays and lesbians developed as part of that broader intolerance. I make this point, not to seek to justify any particular view or to express any judgment, but to reinforce the danger of looking to the past to determine whether discrimination exists today. History is notoriously protean. Attitudes may be inconstant, but fundamental rights are not. Consequently, reference to history to justify the exclusion of gays and lesbians from the status of marriage is both an introspective and a retrospective argument. It is because minority groups have been frequently deprived of their basic human rights in the past that the attempt must be made to determine what those rights are and whether they are being denied. If they are being denied, it is important to spell that denial out if the basic dignity of everyone in a more enlightened age is to be secured. 9. Article 26 Nowak states that the principle of equality and the prohibition of discrimination runs like a ³red thread² throughout the ICCPR (Nowak, supra, at p 460). Ramcharan describes it as the dominant single theme of the Covenant. (Ramcharan, ³Equality and Non-discrimination² in The International Bill of Rights (1981 - Columbia University Press, Henkin (Ed), at p 246). The principle finds its most acute expression in Article 2(1) and Article 26 of the Covenant. General Comment 18 defines the Human Rights Committeeıs perception of the function of Articles 2(1) and 26 in these terms: Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights. Thus, article 2, paragraph 1, of the International Covenant on Civil and Political Rights obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognised in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property birth or other status. Article 26 not only entitles all persons to equality before the law as well as equal protection of the law but also prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Committee has construed Article 26 very broadly adopting a ³progressive² and modern interpretative approach in accordance with the underlying concepts of equality before the law, equal protection of the law and freedom from the prohibition on discrimination. (See Nowak, supra, at p 474). Not unexpectedly, therefore, the Committee has ruled that the reference to ³sex² in Article 26 (as well as Article 2(1)) is to be taken to include ³sexual orientation². (See Toonen v Australia, Comm. No 488/1992). Article 26 requires the state party to refrain from discrimination in law or in fact in any field regulated and protected by public authorities. See, for example, Broeks v The Netherlands, supra, at para 12.3; see also Zwaan-de Vries v The Netherlands, Comm. No 182/1984, and General Comment 18, supra, para 12. Some idea of the scope of Article 26 is provided by the decisions of the Human Rights Committee under the Optional Protocol to date. These decisions have, among other things, dealt with unemployment benefits, insurance benefits, educational subsidies for private schools, disability pensions, military retirement pensions, right of married women to sue for rent arrears, alternative service requirements for conscientious objectors, family allowance benefits, language rights, workplace safety head gear, homosexual conduct, and owners rights and inheritance or succession rights in relation to confiscated private property. While it applies to all laws, policies and practices of the state party, however, it does not require the state to enact legislation to give effect to the Article. Rather, if and when the state party enacts legislation, ³then such legislation must comply with article 26². See, for example, Broeks v The Netherlands and Zwaan-de Vries v The Netherlands, supra. In paragraph 12.4 of Broeks the Human Rights Committee confirmed that, although Article 26 requires that legislation should prohibit discrimination, it does not of itself contain any obligation in respect of the matters which may be provided for by legislation. It does not, for example, require any state to enact legislation to provide for social security. When such legislation is adopted in the exercise of a stateıs sovereign power, however, such legislation must then comply with Article 26 and the Covenant. With respect, therefore, it is not correct to suggest, as is suggested in Keith Jıs draft judgment, that Article 26 cannot be read alone, but must be supported and qualified by other provisions in the Covenant. Article 26 has been vested with substantive and autonomous effect. In Broeks v The Netherlands, supra, para 12.1, the Committee stated that the provisions of Article 2 do not detract from the full application of Article 26. In para 12.3, the Committee confirmed that, for the purpose of determining the scope of Article 26, it had taken into account the ³ordinary meaning² of each element of the Article in its context and in the light of its object and purpose. It particularly noted that Article 26 does not merely duplicate the guarantees already provided for in Article 2. The same point was made by the Committee in para 12 of its General Comment 18 when it reiterated that Article 26 does not ³merely duplicate the guarantee already provided for in article 2, but provides in itself an autonomous right². The Committee expressly said that ³the application of the principle of non- discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant². Further, the Committee has specifically found violations of Article 26 ³standing alone², for example, Broeks v The Netherlands, supra, Danning v The Netherlands Comm. No 180/1984, Zwaan-de Vries v The Netherlands, supra, Vos v The Netherlands Comm. No 218/1986, Gueye v France Comm. No 196/1985, Bhinder v Canada Comm. No 208/1986, Jarvinen v Finland Comm. No 295/1988, Lindgren et al v Sweden Comm. Nos 298/1988 and 299/1988, Pauger v Austria Comm. No 415/1990, Sprenger v The Netherlands Comm. No 395/1990, Oulajin and Kaiss v The Netherlands Comm. Nos 405/1990 and 426/1990, Araujo-Jongen v The Netherlands Comm. No 418/1990, Neefs v The Netherlands Comm. No 425/1990, Pepels v The Netherlands Comm. No 484/1991, Simunek et al v The Czech Republic Comm. No 516/1992, Somers v Hungary Comm. No 566/1993 and Adam v The Czech Republic Comm. No 586/1994. It may well be, as I acknowledge below, that the Human Rights Committee may not presently hold that a prohibition of same sex marriages is a violation of Article 26. But it would seem unnecessary and unfortunate to seek to construe the Article itself negatively or narrowly in an attempt to arrive at that conclusion. To date the Committee have declined to adopt a negative or narrow approach as is evident, for example, from its decision to hold that Article 26 embraces sexual orientation as well as sex and to declare that the article is to be construed independently of other provisions in the Covenant. Such an approach would seem to be wholly appropriate to an Article which, as much as any other, exemplifies the ³dominant theme² of the Covenant. As we have already seen, the Human Rights Committee recognise that not every differentiation of treatment constitutes discrimination, but any such distinction must be ³reasonable and objective² and aim to achieve a purpose which is legitimate under the Covenant. (See General Comment 18, paras 12 and 13; see also Broeks v The Netherlands, supra, para 13). Thus, it may be presumed that, faced with the question whether the exclusion of gays and lesbians from the status of marriage is discriminatory, the Committee will apply that test. If, but only if, Article 26 is to be invoked in the context of this appeal to the extent it has been invoked in the draft judgment of Keith J, the same question should be asked. Yet, if it is asked, resort must seemingly be had to the definitional argument holding that marriage is innately an opposite-sex institution or to an argument based on the only element of a heterosexual marriage relationship which would distinguish it from a permanent enduring homosexual relationship, that is, the notion that marriage exists for the purpose of procreation. I believe, for the reasons I have set out in Part I, it would be difficult to demonstrate that such a purpose provides a reasonable and objective basis for the distinction drawn between heterosexual couples and gay and lesbian couples in relation to the status of marriage. 10. Article 23 I will not spend a great deal of time on Article 23 as discussed by Keith J. The appellants did not seek to rely on it, and I would not have expected a claim like the present to be advanced by reference to it. I will make four short points. First, as already noted, Article 26 is not restricted to or dependent upon any other provisions of the Covenant. Its ³stand alone² effect means that discrimination on the grounds of sex or sexual orientation is a violation of Article 26 irrespective of the terms of Article 23. Secondly, apart from establishing the family as the fundamental group unit of society, Article 23 was aimed at establishing both the equality of spouses and freedom of marriage. Indeed, in its formation the guarantee of equal rights to spouses met with strong opposition from many states on grounds including ancient traditions, deeply rooted religious beliefs, and the perceived differing roles of the sexes in different societies. (Nowak, supra, at p 416). So, too, forced or arranged marriages of young women by their parents were intended to be precluded by the prohibition of marriage without the ³free and full consent² of the intending spouses. Having regard to its history and objectives, therefore, it is not surprising that Article 23 is worded as it is. The Article was not directed at the discrimination in issue in this case; its focus lay elsewhere. It is interesting to note that Article 16 of CEDAW is less restricted than Article 23. It uses gender neutral language in requiring state parties to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and the family. The CEDAW Committee in its General Recommendations observed that ³the form and concept of the family can vary from State to State... . Whatever form it takes... the treatment of women in the family both at law and in private must accord with the principles of equality and justice for all people.² In paragraph 16, the Committee continued: A womanıs right to choose a spouse and enter freely into marriage is central to her life and to her dignity and equality as a human being. ... Subject to reasonable restrictions based for example on a womanıs youth or consanguinity with her partner, a womanıs right to choose when, and if, and whom she will marry must be protected and enforced at law. Thirdly, while para 2 of Article 23 is directed at the right of men and women of marriageable age to marry, para (1) provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state. Examining the impact of modern forms of artificial procreation, Nowak would not rule out the possibility in the future that the new forms of family life made possible or easier by artificial reproduction as, for example, the relationship between a surrogate and her child, and ³Œmarriagesı between partners of the same sex with children², will lead to an expansion of the concept of family protected by Article 23. While he believes the right to found a family is restricted under Article 23(2) to members of the opposite sex, the same restriction, he says, does not extend to Article 23(1). Fourthly, the fundamental rights guaranteed in Article 23 was not enacted in our Bill of Rights. Even if Keith Jıs reasoning is correct, and I do not agree that it is, there is no such provision in the Bill of Rights to impinge upon the correct application of s 19 of that Act. 11. The relationship of Article 26 and s 19 I do not question that s 19 is to be construed having regard to Article 26. That is clear. But it seems to me to be an odd suggestion that discrimination cannot be found to exist under a domestic statute directed at discrimination in all its forms unless the same law or practice would be held to be a violation under Article 26. To my mind, s 19 should be interpreted consistently with the principles of equality before the law, the equal protection of the law and the prohibition of discrimination underlying Article 26 and confirmed by the Human Rights Committee. I sought to achieve that objective in Part I. What I do not accept is that the ³reach² of s 19 should be circumscribed by a projection of what might be found by the Committee in respect of a similar claim alleging a violation of Article 26. New Zealand legislation, and especially a fundamental constitutional document such as the Bill of Rights, must be interpreted having primary regard to the New Zealand context. While some human rights norms, such as freedom from torture or a right not to be arbitrarily executed, are readily capable of universal interpretation, others, such as the legitimacy of alleged discrimination, are made much more difficult by the existence of divergent cultural attitudes. (See Sarah Joseph ³Gay Rights under the ICCPR - Commentary on Toonen v Australia² (1994) Vol 13, No 2, U Tas LR 392, at p 405). The Human Rights Committee has a diverse membership from all parts of the world. Homosexuality is viewed as fundamentally wrong by a number of participating states and their cultural or religious differences or beliefs make them relatively less tolerant of gay and lesbian partnerships than is the case of other states. There can, therefore, be no universal common denominator available for application in this country when determining whether the exclusion of gays and lesbians from the status of marriage is discriminatory under s 19 of the Bill of Rights on the grounds of sex or sexual orientation. In the result, I would not circumscribe the purpose and scope of s 19 in the manner proposed by Keith J. His perception of the effect or potential of the section seems to me to be ungenerous and inappropriate for a fundamental right, the right to freedom from discrimination, and I cannot accept that s 19 should be exempt the same generous and liberal interpretation accorded other provisions in the Bill of Rights. A generous interpretation avoiding what has been called ³the austerity of tabulated legalism² suitable to give to individuals the full measure of their fundamental rights and freedoms is widely accepted as a constitutionally sound principle. If s 19 is to have the limited effect and potential suggested, it logically also should have that limited effect and potential in respect of discrimination on the other grounds specified in s 21 such as religious and ethical beliefs, ethnic or national origins, political opinions, colour, or race. Such an outcome is unacceptable. 12. Conclusion In this country, Parliament has seen fit to enact a Bill of Rights. It includes s 19 providing that everyone has a right to freedom from discrimination on the prohibited grounds of discrimination set out in the Human Rights Act. These grounds expressly include sex and sexual orientation. While, as Cartwright J said, the international covenants ³paint a backdrop against which New Zealandıs obligation and compliance can be placed², the essential task of this Court is to apply s 19 in a manner which will protect and promote the fundamental rights and freedoms secured to the citizens of this country. To my mind, once Parliament has charged the Courts with the task of giving meaning and effect to the fundamental rights and freedoms affirmed in the Bill of Rights, it would be a serious error not to proclaim a violation if and when a violation is found to exist in the law, whether it be the common law, statutory law or the administration of the law. In this country, as in many societies throughout the world, marriage is the single most significant communal ceremony of belonging. The legal recognition it has been accorded has conferred on it a status which, apart from the symbolism of legal recognition, attracts many consequential legal benefits. To exclude from that status gays and lesbians who live in enduring and committed relationships, which can reflect all the qualities of heterosexual marriage other than procreation, is necessarily discriminatory. The exclusion is inescapably based on their sex or sexual orientation. Such a basis equally inescapably judges them less worthy of the respect, concern and consideration deriving from the fundamental concept of human dignity underlying all human rights legislation. I would dismiss the appeal. But having regard to the fact the appellants have established that they are subject to discrimination contrary to s 19 of the Bill of Rights, I would not make any award for costs. Solicitors Recordon & Co, Onehunga for Appellants Crown Law Office, Wellington for Respondent COURT OF APPEAL OF NEW ZEALAND CA 200/96 BETWEEN LINDSAY QUILTER AND MARGARET PEARL First Appellants AND JULIET ANN JOSLIN AND JENNIFER DAPHNE ROWAN Second Appellants AND SARAH JANE ANDERSON AND SAMANTHA JANE COURT Third Appellants AND THE ATTORNEY-GENERAL Respondent Coram: Richardson P Gault J Thomas J Keith J Tipping J Hearing: 3 September 1997 Counsel: R E Harrison QC, N C Christie and T V Clark for Appellants N McAteer and J Johnston for Respondent Judgment: 17 December 1997 JUDGMENT OF KEITH J TABLE OF CONTENTS Summary 2 Freedom from discrimination and the right to equality 3 Bentham and Dicey 4 The reluctance of the common law 5 Legislation - particular and general - national and international 6 The International Covenant on Civil and Political Rights 7 New Zealand legislation 10 Section 19 of the Bill of Rights 11 The incidents of marriage 14 Conclusion 17 Summary For the reasons given by Tipping J, I agree that the only possible interpretation of the Marriage Act 1955 excludes same sex marriages. Accordingly I agree that the appeal fails. In this judgment I explain why I do not think that that law is in breach of the right to freedom from discrimination as that right is stated in s19 of the New Zealand Bill of Rights Act 1990. I reach that conclusion without invoking the limitation provision of s5. It follows that I also do not depend in any way on the terms of s4 and the principle it reflects. If that manner of approaching the issues introduces an element of artificiality into this judgment, that appears to be unavoidable. The reason in brief for the conclusion that s19 would not be breached by the Marriage Act as interpreted is that, in terms of its meaning and purpose, s19 would not have removed a central element of the accepted definition of marriage, the central element being that the partners to a marriage are of opposite sexes. Parliament would not have effected such a major change to a fundamental institution in our society and legal system with a great number of consequential changes (where the law depends on marital status) in such an indirect way. Rather, to make such a change, Parliament would be expected to act in a direct way by expressly changing the definition of marriage or by making particular incidents attaching to marriage more widely available. More generally, extensive experience elsewhere of guarantees of non- discrimination and equality demonstrate that they are understood and applied in a pragmatic, functional way. The reasons for that conclusion are based on several matters: the importance and complex character of the right to freedom from discrimination and the related right to equality; the evolutionary development of, and interaction between, the prohibited grounds and the differing areas of private and public activity affected by the different grounds; the differing significance of the particular proscribed grounds; the differing significance of the public interests and values underlying and reflected in the law or institution to which the particular ground is claimed to apply; the choice between altering marital status as a whole and making the incidents attaching to that status more widely available; and the choice between legislative and adjudicative change in such areas. History and comparative experience show that developments by the courts in this area are in general molecular rather than molar, to borrow from Oliver Wendell Holmes. Normally the major changes come from political and legislative processes which address the issues in a direct way. Beyond those direct express answers, the outlines of the relevant principles will often remain shadowy. They may not present a clear logical structure, visible from the outset. In this judgment I do no more than hint at possible positive elements of the right to freedom from discrimination, since I am principally concerned with the negative proposition, that s19 does not reach the matter of same sex marriages. Freedom from discrimination and the right to equality Section 19(1) of the Bill of Rights is at the centre of this case: Freedom from discrimination - (1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. In terms of s3, that provision, like the rest of the Bill, applies only to acts done: (a) By the legislative, executive, or judicial branches of the Government of New Zealand; or (b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law. ³The grounds of discrimination in the Human Rights Act ² are set out in its s21(1) where the 13 grounds are referred to as ³prohibited grounds of discrimination². The appellants invoke two of them: (a) Sex, which includes pregnancy and childbirth: ... (m) Sexual orientation, which means a heterosexual, homosexual, lesbian, or bisexual orientation. The appellants say they are being deprived of the right to marry the person of their choice because of their sex or their sexual orientation. The principle of freedom from discrimination, like the right to equality with which it is closely linked historically and conceptually, is a cardinal principle of our constitutional and legal system. It is also a complex principle which cannot always be applied in an automatic, comprehensive way. That appears both from the political history of the principle and the associated right to equality and from their development in the law of many countries including New Zealand. Before I mention some of that history, the complexity can be suggested in two ways. The first is by briefly relating four other of the ³prohibited grounds of discrimination² stated in the Human Rights Act to aspects of the capacity to marry as it is regulated by New Zealand law, including the Marriage Act. ³Marital status², by including the status of being married, is relevant to the law prohibiting polygamous marriages; ³disability² bears on the essential capacity to consent to marriage; ³age² relates to the minimum age for marriage; and ³family status², by including ³being a relative of a particular person², is to be linked to the prohibitions on marriages within certain degrees of consanguinity and affinity. I do not mean by that list to demean in any way at all the claims of the three couples before the Court. Rather the purpose is only to suggest that applications of the principle of equality or of the prohibition on discrimination will often have to take careful account of the context and competing principles and interests. Such a contextual and principled application appears to be essential if the principle and prohibition are to be given real value and we are to avoid the logic of the arguments indicated in the title of such scholarly writings as Westenıs ³The Empty Idea of Equality² (1982) 95 Harv L Rev 537. (The debate following that article has recently resurfaced, eg Peters and Greenawalt (1997) 110 Harv L Rev 1210, 1265.) A second way of indicating the complexity appears from the facts of the present case. Each of the three couples wishes to marry and has applied without success for marriage licences. Those refusals by officials of the executive branch of the Government of New Zealand (to use the terms of s3 of the Bill of Rights) were not ³on the grounds of² the sexual orientation of each applicant - to quote the prepositional phrase in s19. It might also be said that the refusals involved no breach of the right to freedom from discrimination on the grounds of the sex of each applicant, since each and every individual seeking to marry someone of the same sex would be equally refused. (Such an application might be made for reasons of companionship with no sexual element in the relationship at all, between soulmates and confidants, perhaps as well to get the economic and other advantages of married status, especially those coming from the State, provided for in the law.) An answer to the two propositions stated in the previous paragraph might be put on the basis that the law prohibiting discrimination should be concerned with the effect rather than the ground (or purpose) of the action, and that the real effect of the Marriage Act as this Court interprets it is to treat the appellants (to borrow from Canada) as not equally deserving of respect with other citizens; they are, it could be said, being made subject to burdensome impacts for personal characteristics which are irrelevant to the legal institution or status in issue. (The last contention can lead directly into the circularity which as the American writing shows can bedevil this area.) I do not take the two matters just mentioned any further, except to use them to stress that this is not an area that can be captured by neat formulas. An approach looking to the ground of discrimination invoked and the interest affected is likely to be more helpful as I attempt to show in this judgment, beginning with some history. Bentham and Dicey Two pieces of political and constitutional history from the late 18th century and the late 19th century demonstrate both the fundamental claim of principle and some of the problems. The 1789 French Declaration of the Rights of Man began with a clarion call: All men are born and remain free, and equal in respect of rights. ... Thomas Jefferson had used similar language 13 years earlier in the American Declaration of Independence. Jeremy Bentham would have none of it. Two passages from Anarchical Fallacies give a sense of his ridicule: All men are born equal in rights. The rights of the heir of the most indigent family equal to the rights of the heir of the most wealthy? In what case is this true? I say nothing of hereditary dignities and powers. ... All men (i.e. all human creatures of both sexes) remain equal in rights. All men, meaning doubtless all human creatures. The apprentice, then, is equal in rights to his master; he has as much liberty with relation to the master, as the master has with relation to him; he has as much right to command and to punish him; he is as much owner and master of the masterıs house, as the master himself. The case is the same as between ward and guardian. So again as between wife and husband. The madman has as good a right to confine anybody else, as anybody else has to confine him. The idiot has as much right to govern everybody, as anybody can have to govern him. The physician and the nurse, when called in by the next friend of a sick man seized with a delirium, have no more right to prevent his throwing himself out of the window, than he has to throw them out of it. All this is plainly and incontestably included in this article of the Declaration of Rights: in the very words of it, and in the meaning - if it have any meaning. (Bowring (ed) The Works of Jeremy Bentham (1843) vol 2, 489, 498- 99) Many countries, including New Zealand in 1990, and the world community through the United Nations have, by adopting bills of rights, rejected Benthamıs basic thesis that ³natural and imprescriptible rights [are] rhetorical nonsense, - nonsense upon stilts². But his stirring reasoning, like the careful scholarly writing from the United States mentioned earlier, indicates at the very least the need to move beyond the general statement to the detail, to other relevant principles and interests and to the context. The principle and the prohibition cannot apply in some automatic, stand alone way. The critical importance of context appears as well from the second historical reference, taken from a century later, at the end of the nineteenth century. For A V Dicey in his hugely influential Introduction to the Law of the Constitution (1885, 10th ed 1959) 193 We mean ... when we speak of the ³rule of law² as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. But that strong statement has to be read against the fact that even in 1885 Ministers, officials, constables and public bodies had many powers which were not equally available to citizens who were in consequence subject to liabilities to which in turn public officials and bodies were not subject. The ³ordinary law of the realm², ³legal equality², the ³one law² and ³the universal subjection² varied greatly - and not only between Crown and subject, but also between different categories of subjects. The reluctance of the common law Not only did that ordinary law of the realm make many express distinctions, but even when it was silent it did not, in general, prevent the State or individuals discriminating on the grounds of race or religion. Thus in 1931 Lord Atkin speaking for the Privy Council upheld the freedom of the Kenyan Commissioner of Lands, in selling town plots in Mombasa, to limit the sale to Europeans. The Crown, exercising the right of disposing of its property, had, he said, at least the right of private owners to make the disposition in any way that appeared to it to be best in its interests. In the absence of express statutory right ³there does not exist and never has existed, any legal right of any particular member of the public to take part [in the sale] ... . The question whether the restriction [on bidding] should be based on racial distinction is obviously not one of law, but of policy.² Commissioner for Local Government Lands and Settlement v Kaderbhai [1931] AC 652, 658, 659. By contrast, 10 years earlier, Stout CJ had held that it would be arbitrary and unreasonable for a lessor to refuse to consent to the assignment of a lease simply because the proposed assignee was Chinese. But his ruling did not absolutely reject ³racial² objections to assignments. It turned in part on his characterisation of the Chinese in New Zealand: The Chinese residing in our midst are law-abiding people. They are not seditious, and the number of criminals amongst them is extraordinarily small. They are peaceful citizens, and set an example of industry and obedience to the laws of the country which might well be followed by a large number of our own people. Lempriere v Burghes [1921] NZLR 307, 309 It was not until 1965 that an absolute bar on racially restrictive covenants in respect of land as well as on racial objections to assignments of leases was established, and that was done by Parliament, see now Property Law Act 1952 ss33A and 110(1A). In that year however an English judge (noting that a Race Relations Bill was then in Parliament) held that, while racial and religious discrimination was widely regarded as deplorable, it would be going much too far to hold that the exclusion of Jews and Roman Catholics from a charity to establish medical studentships was contrary to public policy, however ³unamiable² or ³undesirable² it might be, In Re Lysaght [1966] Ch 191; although note the actual result in that case. Legislation - particular and general - national and international Those instances indicate a particularistic approach to discrimination - in terms both of the areas of activity, such as land dealings, and of the prohibited grounds, especially race. That particularistic approach also appears in contrasting North American cases decided 50 years ago by reference to the just adopted Charter of the United Nations, Re Drummond Wren[1945] 4 DLR 674 and Sei Fujii v State of California (1952) 242 P 2d 617. Those two cases may as well suggest that it is through and by reference to constitutional, legislative or treaty prescript, promoted by those with political responsibility and power, that the changes are more likely to come. It is, for instance, through particular legislative action that disadvantages which women, and particularly married women, faced under the law have been progressively removed - in respect, among other things, of property, succession, political rights, and rights within the family. That legislative action might also be at the international level, as appears notably in the activities of the United Nations based on its Charter. In the preamble ³We the Peoples of the United Nations² reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. (See also articles 8, 55 and 56) That critical commitment is to be seen, first, as a positive response to and rejection of the horrific facts of recent world history and, second, as the basis for the preparation of texts which had declaratory and, later, binding force and for establishing mechanisms for implementing the texts, with national legislation and institutions being the major means. Many of the resulting texts are particular in the two ways mentioned: they relate to specified prohibited grounds, especially race, colour, descent or national or ethnic origin; religion (or religion or belief); political opinion; social origin; economic condition; birth; and sex (or discrimination against women); and the prohibition is in respect of particular activities or matters: education; employment and occupation; and an extensive range of identified civil, political, economic, social and cultural rights. The International Covenant on Civil and Political Rights Not all the provisions on equality and non-discrimination are however confined in those two ways. Article 26 of the International Covenant on Civil and Political Rights is a major exception, 999 UNTS 171. It proclaims that All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Not only is that provision silent in relation to the activities or matters in respect of which there is a right to equality and equal protection and a protection against discrimination, but also the prohibited grounds are open ended : the protection is ³against discrimination on any grounds such as race ...². Other provisions of the Covenant make it clear however that the drafters were aware of the complexity of the principle that they were trying to capture. Article 26 was to be supported and qualified by other provisions. It was not to be read alone, as stating some obvious easily applicable principle. So article 2(1) records the undertaking of the State Parties to ensure all the rights ³without distinction of any kind, such as race, colour, sex ...²; article 3 requires the Parties to ensure the equal right of men and women to the enjoyment of the rights in the Covenant; aliens are separately dealt with in article 13; children are the subject of particular provisions in articles 6(5), 10(2)(b) and (3), 14(1) and (4), 18(4), 23(1) and (4) and 24; certain political rights are accorded to citizens and not others by article 25; article 27 applies to members of minority groups; and, of most immediate relevance, article 23 deals specifically with the right to marry in the context of the family: 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2 The right of men and women of marriageable age to marry and to found a family shall be recognized. 3 No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. The proposition that it cannot be the case that the equality and non-discrimination guarantees of article 26 simply remove from the law all distinctions based on the prohibited grounds appears as well from the history of the drafting of the provision and its subsequent interpretation. For instance a 1955 Secretariat Annotation to the Draft International Covenants on Human Rights recording the debate up to that time on the text of what is now (with some changes) article 26 contains the following passages: 179 The expression ³all persons are equal before the law² might be held to mean that the law should be the same for everyone, or to preclude the imposition of reasonable legal disabilities upon certain categories of individuals such as minors or persons of unsound mind. In reply, it was explained that the expression did not refer to the substance of the law itself, but to the conditions under which the law was to be applied. The provision was intended to ensure equality, not identity, of treatment, and would not preclude reasonable differentiations between individuals or groups of individuals. ... 181 ... The view was expressed that the prohibition of all discrimination on grounds of ³national origin² would mean the abolition of all control over foreigners; and the prohibition of discrimination on grounds of ³birth² would require changes in existing legal provisions about inheritance. This interpretation, however, was challenged by certain representatives who maintained that the application of the principle of non-discrimination had to be considered in the light of the other provisions of the covenant. Article 1 of the draft covenant enunciated the right of peoples to permanent sovereignty over their natural wealth and resources; a non- discrimination clause should not, therefore, be construed as prohibiting measures to control aliens and their enterprises. Neither should the prohibition of discrimination on grounds of birth be interpreted to mean the abolition of distinction between legitimate and illegitimate children in matters relating to inheritance, since under article 22 [now article 23 quoted above] the institution of the family was recognized as the natural and fundamental unit of society. (UNGAOR A/2929, pp 177, 179; paras 179, 181) Both the general and the particular background to article 26 might have suggested that it would in practice have a limited stand alone effect. Its history to date supports that suggestion. The Human Rights Committee set up under the International Covenant on Civil and Political Rights had been receiving individual complaints of breach of the Covenant for more than 10 years before, in 1987, it gave article 26 an independent effect for the first time, ruling against Dutch unemployment benefit law since it supported married women only if they were ³bread winners² - something not required of married men. The right to equal protection of the law ³prohibits discrimination in law or in practice in any field regulated and protected by public authorities². This does not however ³make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26², Nowak UN Covenant on Civil and Political Rights (1993) 470. That is however a rare finding of an independent breach of article 26. So the Committee has rejected complaints against disability laws favouring married over unmarried persons and by a Sikh who refused to wear safety head gear at work and complained of religious discrimination, Nowak 471-72. In a 1989 General Comment on non-discrimination, the Committee made an observation which drew on those determinations and which conforms with the drafting commentary and much experience in different legal and constitutional systems: not every differentiation of treatment will constitute discrimination, if the criteria for differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. General Comment 18 (36th Session, 9 November 1989) para 13 The various interpretations of article 26 which, to my knowledge, have so far been given by those responsible for preparing and then for applying the Covenant do not provide the slightest basis for a claim of the kind made in the present case. But what of the specific provision expressly dealing with marriage - article 23 - quoted earlier? Given the overall structure of the Covenant, a claim like the present one is more likely to be advanced by reference to that particular provision rather than by reference to a general guarantee. Paragraph (2) of that provision, declaring the right to marry, is notable for its express recognition of ³the right of men and women ... to marry². The related provision of the Universal Declaration of Human Rights is in identical terms and that provision in turn is set out in the preamble to the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage 1962 by which New Zealand became bound in 1964, 521 UNTS 231. (See similarly article 16 of the Convention on the Elimination of all Forms of Discrimination against Women, 1249 UNTS 105.) The explicit limiting reference to ³men and women² is emphasised by the fact that throughout the other substantive provisions of the Covenant general wording is used to identify the beneficiary of the rights : everyone, anyone, (all) persons, no one; article 6(5) provides the sole exception so far as sexual categories are concerned with its prohibition of the execution of pregnant women; see also article 3 and the provisions relating to children, aliens and members of minorities mentioned earlier (p10). If a further indication is needed that the right to marry is limited to opposite sex couples it appears from the French and Spanish texts of article 26 (and from the French text of the Universal Declaration) which refer in the singular to the right of a man and a woman to marry, thereby removing any possible semantic argument based on the use of the plural in the English text. It is not surprising that a scholar writing recently about the Covenant and United Kingdom law says that It seems clear that the drafters did not envisage homosexual or lesbian marriages as falling within the terms of article 23(2) ... . Sandy Gandhi in Harris and Joseph (eds) The International Covenant on Civil and Political Rights and United Kingdom Law (1995) 507; see also 509 in respect of transsexuals; Nowak does not even pause to mention the matter in his commentary on article 23, 407, and has no relevant discussion in his commentary on article 26. New Zealand legislation I accept that counsel for the appellants gave only limited attention to the international texts. By contrast he emphasised New Zealand law and in particular s19 as enacted in 1993. But the above discussion has both a general and a particular relevance. General, in that it indicates both the limited scope of general guarantees of equality and the non-acceptance of the world community of any support for a right to same sex marriage based on the principle of equality or the prohibition on discrimination. And particular, in that s19 of the New Zealand Bill of Rights has to be seen, at least in part, in that international context. Before I return to s19, I refer to three major steps taken by the New Zealand Parliament over the last three decades to combat discrimination. The steps were taken in part in response to international developments : û the enactment of the Race Relations Act in 1971 (³to affirm and promote racial equality in New Zealand and to implement the [1966] International Convention on the Elimination of all Forms of Racial Discrimination² which New Zealand ratified in 1972) prohibiting certain acts in relation to public facilities, provision of goods and services, employment, and land, housing and accommodation by reason of a personıs colour, race or ethnic or national origin; û the extension of those prohibitions to discrimination on the grounds of sex, marital status or religious or ethical belief and the widening of the activities covered (to include partnerships, for instance) by the Human Rights Commission Act 1977 (³An Act ... to promote the enhancement of human rights in New Zealand in general accordance with the United Nations International Covenants on Human Rights²; New Zealand ratified the 1966 Covenants in 1978 and the 1979 Convention on the Elimination of all Forms of Discrimination against Women in 1985); û the inclusion of further prohibited grounds of discrimination including disability, age and sexual orientation in the 1993 Act (³An Act ... to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights²). Those steps highlight the three points made earlier - 1. that it is Parliament which has widened the prohibition on invidiously discriminatory action and that it has done that by 2. adding to the prohibited grounds, and 3. forbidding particular identified activities by reference to one or more of those grounds. So far as 2. is concerned, developments in New Zealand, like those elsewhere, demonstrate a social and historical evolution within societies as they identify particular grounds as more or less worthy of attention and proscription. Thus there is as yet no United Nations convention on the elimination of religious discrimination. And while discrimination on the grounds of sex, or more accurately discrimination against women, has long been prohibited in particular areas by international texts, sexual orientation has not had specific multilateral treaty recognition so far as I am aware (although the Human Rights Committee has noted that in its view ³sex² in articles 2(1) and 26 of the Covenant is to be taken as including sexual orientation, Toonen v Australia Communication No 488/1992, reprinted in 69 ALJ 602, para 8.7; that view was not relevant to its determination in the case, see para 11). An excellent sense of the development of the priorities can still be obtained from an outstanding early article on the Convention on the elimination of all forms of racial discrimination, on which this Court has earlier relied, by Dr Egon Schwelb (1966) 15 ICLQ 996; see King-Ansell v Police [1979] 2 NZLR 531, 540. The particularity of approach, nationally and internationally, is also to be seen in three other New Zealand statutes: the 1965 amendments to the Property Law Act already mentioned and in two measures concerned only with discrimination against women and only with employment, at first in the public sector and then generally : the Government Service Equal Pay Act 1960 and the Equal Pay Act 1972. The enactment of that legislation enabled New Zealand to ratify the International Labour Convention 100 on Equal Remuneration. As long ago as 1919 the Constitution of the International Labour Organisation had stated as one of its principles that men and women should receive equal remuneration for work of equal value, article 427 of the Treaty of Versailles. Section 19 of the Bill of Rights The relatively recent dates of enactment of the statutes mentioned help explain the commentary in the 1985 White Paper, A Bill of Rights for New Zealand (AJHR A6), to the text of what became s19 in 1990: The rights encapsulated in this [provision], unlike most of those protected by the Bill, are not derived from the common law. They are the offspring of the profound movement of ideas and opinions during the last 50 years which have their principal legislative expression in the Race Relations Act 1971 and the Human Rights Commission Act 1977. Reference may also be made to the strong and long standing emphasis on equality in New Zealand social and political thinking ... (para 10.75) As well as being particular and gradualist in respect of the prohibited grounds and the activities affected, Parliament also frequently places specific limits on the prohibitions - for instance in respect of private situations such as shared residential accommodation. That particular approach also appears in another quite distinct way when Parliament does not make a general change to a status but instead gives a wider group certain of the incidents of the status. So in respect of particular aspects of education, benefit entitlements, child support or domestic violence it has equated relationships in the nature of a marriage with marriage. (I come back to some of those provisions.) One broad point to be drawn from this New Zealand material, as with the comparative and international material, is the successive identification for proscription, both nationally and internationally, of different personal classifications some of which, to use an American expression, are more ³suspect² than others; sometimes the word ³invidious² is used. A nuanced and phased appreciation of the different grounds is recognised and applied, by legislators as well as by judges. The graduation may involve û the withdrawal of state intrusion by decriminalisation (as with the Homosexual Law Reform Act 1986, decisions of the European Court of Human Rights eg Modinos v Cyprus (1993) 16 EHRR 485, and the Toonen case in the Human Rights Committee mentioned earlier, followed by Australian and Tasmanian legislation), û the recognition of political rights by the conferral of rights (as in the Electoral Act 1893) or in the nullification of the denial of rights (as in Romer v Evans (1996) 134 L Ed (2d) 134, 116 S Ct 1620), û the recognition of contracts once banned by public policy (compare Cowan v Milbourn (1867) LR 2 Exch 230 with Bowman v Secular Society Ltd [1917] AC 406), and û changing the scope of a status (as in the Legitimation Act 1939, the Status of Children Act 1969 and its Amendment Act of 1987) as well as the progressive establishing of prohibited grounds in relation to an increasing range of activities. The Bill of Rights is of course a legislative measure of a significantly different type from the more particular measures discussed so far. It is deliberately written in largely general terms, (a) to affirm, protect and promote human rights and fundamental freedoms in New Zealand and (b) to affirm New Zealandıs commitment to the Covenant. Parliament departed from the specific style of drafting which it commonly, but not always, uses. But it does not follow from that that the general provisions of the Bill of Rights would have effected wide spread changes, with significant consequences right across the body of that part of the law which depends on married status and elaborates the incidents of that status. I refer first to the largely declaratory character of the Bill of Rights, second, to the particular character of s19 and, third, to the role of marriage in the law. The largely declaratory nature of the Bill does not help in difficult marginal cases. Plainly the Bill made important changes to the law and Parliamentıs purpose would be thwarted were the Bill to be given only a declaratory effect. From the outset this Court has emphasised the need for a generous interpretation of the Bill of Rights suitable to give to individuals the full measure of the fundamental rights and freedoms it affirms; see especially Ministry of Transport v Noort [1992] 3 NZLR 260, 268 (Cooke P) and 277 (Richardson J) both depending on Lord Wilberforceıs judgment in Minister of Home Affairs v Fisher [1980] AC 319, 328 JC. The international context, the broad and simple language stating the rights and freedoms, and the recognition of limits on their absoluteness and generality are all to be weighed when attention turns, as it must, to particular provisions, in this case s19. Section 19(1) was enacted in 1990 in exactly the form that it took in the original proposal in the 1985 White Paper with the addition of ³marital status²: (1) Everyone has the right to freedom from discrimination on the ground of colour, race, ethnic or national origins, sex, marital status, or religious or ethical belief. The relevant part of the Commentary in that White Paper may therefore be of assistance in understanding that provision, paras 10.75-82. Although s19 had its origins in part in article 26 of the Covenant and also in s15 of the Canadian Charter it was cast in deliberately narrower terms than both those provisions. The provision would not have the same broad effect as those provisions or the similar guarantees in the 14th Amendment to the United States Constitution apparently had. United States jurisprudence, as already noted, grades the grounds of discrimination. Race is a ³suspect² class and laws based on race are subject to the strictest scrutiny. That appears from the great decision of 1954 requiring the desegregation of public schools and the decision overturning laws prohibiting interracial marriage given over 20 years later, Brown v Board of Education (1954) 347 US 483 and Loving v Virginia (1967) 388 US 1. Sex as a basis for discrimination is subject to a less strict standard : ³classifications by gender², the United States Supreme Court said in 1976, ³must serve important governmental objectives and must be substantially related to achievement of those objectives², Craig v Boren (1976) 429 US 190, 197. Below that standard the use of other categories as a basis for discrimination is subject to a less stringent rational basis test. The Supreme Court applied that test for instance in striking down a state constitutional amendment preventing the adopting or enforcement of state laws giving preferences or protections to persons of homosexual, lesbian or bisexual orientation, Romer v Evans (1996) 134 L Ed 2d 855, 116 S Ct 1620. This test was referred to, but not in any decisive way in Bowers v Hardwick (1986) 478 US 186 in which the Court by 5-4 upheld the Georgia sodomy law; see the discussion of the equal protection clause and the related ³rational basis² test at 196 and n8, 201-202. While the American cases consider the relative importance of the personal classification or characteristic and the importance of the competing interests and values affected by the classification, the Canadian authorities adopt similar approaches, invoking to varying extents the reasonable justification limit of s1 of the Charter (s5 of the New Zealand Bill). Their approaches include the relevance of the characteristic to the functional values underlying the particular law (a consideration which can lead in the present context to a circular argument, as stressed by the Hawaiian Supreme Court in the one North American court ruling, brought to our attention, supporting same sex marriage by reference to an equal protection and non- discrimination guarantee in the (state) constitution, Baehr v Lewin (1993) 852 P 2d 44). Pragmatic or functional approaches within the framework provided by those two matters are preferred to any formulaic approach. That appears, for instance, from the judgments in Egan v Canada (1995) 124 DLR (4th) 609 where a bare majority of the Supreme Court of Canada upheld old age security legislation which gave benefits to a de facto opposite sex spouse of the pensioner but not to a same sex partner; see the valuable discussion in Peter W Hogg Constitutional Law of Canada (4th ed 1997) ch 52 especially at 1236-52. That those North American constitutional provisions, like the international ones, have not been interpreted as guaranteeing a right to enter into same sex marriages must be seen as significant since as its wording and history indicate there may be less reason for interpreting s19 to provide for that right. Two other considerations lead me to the conclusion that s19 does not reach the question of the right to marry. The first is that its general language would have been a remarkably indirect way to effect such a major change in a basic social, religious, public and legal institution. The Western Samoan Court of Appeal in Attorney-General of Western Samoa v Saipaıia Olomalu (1982) reported in (1984) 14 VUW L Rev 275, 288, exercised comparable caution in holding that a limit imposed by statute on the right to vote to chiefs had not been removed by the guarantee in the Samoan Constitution of equality before the law and equal protection under the law. Just as the New Zealand Bill of Rights contains no provision on marriage, the Samoan Constitution gave no express constitutional guarantee of electoral rights. The incidents of marriage The second, related reason concerns the vast range of the incidents of marriage, or more properly the incidents of, or rights and duties arising from, marital status. Those incidents and rights and duties involve several variables. They all emphasise the extreme unlikelihood of a change in the basic elements of marriage being made in such an indirect way as by way of the enactment of s19. Two of the variables are temporal. The incidents of marital status will alter in the course of most marriage relationships as the law changes in response to social change. Consider for instance the major changes made over the past generation in the law relating to the status and guardianship of children, spousal maintenance, matrimonial property, and the grounds for dissolution of marriage. Those changes have of course been made by reference to the standard understanding of marriage - a formal public commitment for an indefinite and possibly lengthy period, recognised and registered by the state, between two spouses of different sexes. The other temporal element concerns the two (or possibly three) phases of the particular relationship - during marriage, possibly after dissolution, and after the death of one spouse. A further variable concerns the personal relationships arising from marriage, first between the spouses themselves (for instance in relation to maintenance, matrimonial property and succession), second between them and children (who may or may not be biological children of one or both) being brought up within the family constituted by the marriage partners (reflected in the law governing the status of children, adoption, and parental leave), third between the spouses and other individuals (such as employers, lessors, or insurers), and fourth between the spouses and the state (for instance in respect of immigration, citizenship, tax and benefits). A fourth variable relates to the personal qualities or characteristics in terms of the emotional relationships (reflected in spousal evidentiary privilege and in the law protecting spousal confidences), economic arrangements (as seen in maintenance and support law) and the environment for the raising of children (for instance in adoption law). David L Chambers discusses the personal characteristics just mentioned in a recent valuable article, ³What If? The legal consequences of marriage and the legal needs of lesbian and gay couples² (1996) 95 Mich L Rev 447. He concludes with the sentence : ³All desirable changes in family law need not be made at once². That wise comment helps introduce a further critical variable which also cautions against major change by indirection in an essential characteristic of the accepted definition of marriage. Instead of extending or redefining the status, the law might make a particular incident or right and duty of marital status available to a wider group. Parliament has used that more selective approach for differing purposes in relation to three relevant groups - parties to polygamous marriages, parties to different sex relationships in the nature of marriage who are not legally married, and parties to same sex relationships in the nature of marriage. The Family Proceedings Act 1980 provides a valuable example of the inclusion of two of those three categories within the status of marriage for particular purposes. Central to that Act is, of course, ³marriage² and the parties to it who, as well, are frequently expressly referred to as ³husband and wife² (eg ss2 (³child of the marriage², ³maintenance agreement²); 8, 11, 12, 13 and 19 (promotion of reconciliation, counselling); and 24 (discharge of separation order). ³Marriage² is not defined in a general way. Parliament is plainly depending on the accepted meaning. That dependence is made even clearer by the two extended meanings it gives to ³marriage². According to s2, In this Act, unless the context otherwise requires, ... "Marriage" includes a union in the nature of marriage that‹ (a) Is entered into outside New Zealand; and (b) Is at any time polygamous, ‹ where the law of the country in which each of the parties is domiciled at the time of the union then permits polygamy That is to say, all the provisions of the Act relating to counselling and conciliation, separation, status of marriage (including dissolution), children and maintenance are applicable to polygamous marriages as well as to marriages as traditionally understood. That is subject to the general requirement in s4 of the Act that a party is, or the parties are, resident or domiciled in New Zealand at the time of the proceedings. Next, Parliament by way of an amendment (s7A) made in 1986 included within the definition of marriage ³a relationship in which the parties are or have been living together as husband and wife, although not legally married to each other², but on this occasion only for two particular purposes : either party can request counselling under s9 and some of the counselling provisions (ss10(4) and (5) and 19(1)) apply in relation to applications for orders made under the Guardianship Act 1968 by parties to a marriage so defined. No other statute expressly refers to polygamous marriages. By contrast many statutes, especially beyond the family law area, expressly refer to relationships in the nature of marriage (or use analogous expressions) and, in those provisions, Parliament often makes it express that the parties to those de facto relationships are of opposite sexes. The legislation concerns employment (holidays, discrimination in employment), commercial matters (companies, customs and excise, overseas investment, solicitors trust accounts, income tax), education, rates rebates, child support, and entitlements and benefits (accident compensation, drug tariff, health, railways corporation welfare, social security, war pensions, legal aid). But Parliament has not, expressly at least, included de facto relationships within the definition of marriage in many other areas in which that concept is critical, notably most of the law dealing specifically with the family; see the law concerning family proceedings (with the 1986 exception already noted), family court, adoption, family protection, joint family homes and matrimonial property. (The wide definition of ³family group² in the Children, Young Persons, and Their Families Act 1989, along with the coverage of the Domestic Violence Act, provides an interesting comparison.) By contrast to that extensive (if still limited) application of the incidents of family status to de facto relationships, in only two statutes has Parliament expressly included same sex relationships within the scope of family groupings. The first, the Domestic Violence Act 1995, is designed to prevent violence in domestic relationships (s5). A person who is a partner of another person is a person in a domestic relationship. ³Partner² is defined as (a) Any other person to whom the person is or has been legally married: (b) Any other person (whether of the same or the opposite gender) with whom the person lives or has lived in a relationship in the nature of marriage (although those persons are not, or were not, or are not or were not able to be, legally married to each other): (c) Any other person, in any case where those persons are the biological parents of the same person The Act, consistently with its protective purpose, extends to a wide range of people within the domestic situation. That is also the case with the second quite different express statutory reference to same sex relationships. The Electricity Act 1992 s111 exempts from certain prohibitions on the carrying out of electrical work by non- qualified persons the maintenance of domestic electrical appliances. The exemption extends to appliances of a ³near relative² of the repairer. ³Near relative² includes the personıs spouse which for this purpose includes any person (including a person of the same gender as the repairer) if they are living in a relationship in the nature of marriage although they are not legally married. To return to Professor Chambers, we see in all this legislation Parliament working from the accepted meaning of marriage and deciding for particular purposes on a case by case basis whether or not to extend that meaning and to include different groups - polygamous, de facto or same sex - within it. To repeat, ³All desirable changes in family law need not be made at once.² As reasons for caution in extending marriage law to same sex relationships he mentions lack of information and possible difference in circumstances. In addressing laws regulating the economic relationship of couples with one another or of couples with the State he says this: To the extent that these laws have an empirical foundation, it is unclear whether the images of opposite-sex relationships that lie behind them will fit the circumstances of the sorts of gay male and lesbian couples who would marry under a change in the law. No adequate research exists about the current behavior or expectations of lesbian and gay couples regarding the economic dimensions of their relationships, and we cannot know, of course, what sorts of couples would choose to marry in the future. What evidence there is suggests that most lesbian and gay couples in long-term relationships believe in pooling resources and practice it today, and that pooling is particularly common among those who engage in ceremonies of commitment. The evidence leaves open the strong possibility, however, that long-term same-sex couples generally keep more of their resources separate than married opposite- sex couples do - that more are cost ³splitters² rather than ³poolers². It is also probable that, if permitted to marry, fewer persons in same-sex marriage would become economically dependent on their spouses than occurs among women in opposite-sex marriages today. (741-742, footnotes omitted) Changes to specific incidents or consequences of a status, rather than to the status itself, might also be effected through administrative action. A possible instance appears from one of the affidavits in this case : a same sex relationship in the nature of marriage can apparently qualify for residence purposes under immigration policies. A recent Law Commission proposal for the reform of succession law somewhat similarly directly addresses an incident of the status of marriage and proposes to make that incident more widely available to relationships (including same sex relationships) in the nature of marriage, rather than proposing a change in the legal status itself : Succession Law : A Succession (Adjustment) Act (NZLC R 39 1997) 56-57. Conclusion When Parliament in 1990 affirmed in the general language of s19 the right to be free from discrimination on the stated grounds, it cannot be seen as overthrowing that particularistic approach which it had followed for so long nor as questioning in a wholesale way the results of that approach. Parliament would not have chosen such an indirect route to introduce such a major change not simply in the status of marriage but also in all of its incidents. The matter would have been introduced in a much more direct way, by specifically altering an element of the accepted definition of marriage (as happened for certain purposes in 1980 in respect of polygamous marriages) or by making more widely available the relevant incident of the statutes (as has happened in many cases for relationships in the nature of marriage between couples who are not married). The foregoing reasoning also gives a clear answer to the question whether the decision of Parliament in 1993 to expressly add ³sexual orientation² to the list of prohibited grounds of discrimination makes any difference. That change was a straightforward consequence of the inclusion of the longer list of grounds included in the Human Rights Act 1993 compared with that in the Human Rights Commission Act 1977. It does not alter the conclusion I have reached about the limited purpose and scope of s19. That negative conclusion does not mean that I consider that s19 has no effect or potential. Growing experience in many jurisdictions provides some indications of its positive impacts (which are relevant to legislative policy as well). So, s19 may limit the exercise of administrative powers where a suspect classification or an important right or interest or both is in issue (as in Van Gorkom v Attorney-General [1977] 1 NZLR 535, [1978] 2 NZLR 387); or it may affect the powers of courts to enforce discriminatory private agreements (as in Shelley v Kramer (1948) 334 US 1 and the Ontario and Californian cases mentioned earlier); or it may influence the interpretation and application of broad expressions in legislation such as ³members of a family² (as in the tenancy protection legislation in issue in Dyson Holdings Ltd v Fox [1976] QB 503 CA and Fitzpatrick v Sterling Housing Assn Ltd (23 July 1997, English Court of Appeal)). A related development of the common law is to be seen in a recent judgment of the House of Lords relating to the liability of a guarantor who is in ³an emotional relationship² as a cohabitor with the borrower : ³Now that unmarried cohabitation, whether heterosexual or homosexual, is widespread in our society, the law should recognise this², Barclays Bank Plc v OıBrien [1994] 1 AC 180, 198. The role of s19 in such areas must be worked out case by case. It is not to be expected that it would have an instant very wide ranging effect. It does not reach the current case. Solicitors Recordon & Co, Auckland, for appellants Crown Law Office, Wellington, for respondent IN THE COURT OF APPEAL OF NEW ZEALAND CA 200/96 BETWEEN LINDSAY QUILTER and MARGARET PEARL First Appellants AND JULIET ANN JOSLIN and JENNIFER DAPHNE ROWAN Second Appellants AND SARAH JANE ANDERSON and SAMANTHA JANE COURT Third Appellants AND THE ATTORNEY-GENERAL Respondent Coram: Richardson P Gault J Thomas J Keith J Tipping J Hearing: 3 September 1997 Counsel: R E Harrison QC, N C Christie and T V Clark for Appellants N A McAteer and J Johnstone for Respondent Judgment: 17 December 1997 ___________________________________________________________________ JUDGMENT OF TIPPING J ___________________________________________________________________ Introduction The issue in this appeal is whether same sex couples may marry. In the High Court, Kerr J held they could not. In arguing that this decision was wrong, Mr Harrison accepted that in 1955, when the Marriage Act was passed, marriage was understood in the traditional common law sense of the union of one man and one woman. For convenience, I will call this the traditional concept of marriage. From that starting point, Mr Harrison argued that the New Zealand Bill of Rights Act 1990 required a new approach to the interpretation of the Marriage Act and to the concept of marriage thereunder. He contended that the traditional concept of marriage discriminates against same sex couples; that such discrimination is in breach of s19 of the Bill of Rights; and that in terms of s6 of the Bill of Rights the Marriage Act can, and therefore should, be reinterpreted so as to permit same sex marriages. Mr McAteer, for the Crown, argued that no discrimination under s19 arose; that if it did, such discrimination must yield to Parliamentıs continuing recognition of the traditional concept of marriage; and consequently the Marriage Act cannot, in terms of s6 of the Bill of Rights, be interpreted so as to permit same sex marriages. In a sense, Shakespeare voiced the appellantsı plea 400 years ago when he wrote in Sonnet CXV1 ³Let me not to the marriage of true minds admit impediments². It is sometimes said that same sex couples may not marry because, whatever their mental affection, they cannot procreate. From a historical and religious point of view there is force in that proposition. For example, the introduction to the 1928 marriage service in the Anglican Book of Common Prayer says that the first cause for which matrimony was ordained is the increase of mankind; in the 1662 version the word procreation was used. This perspective undoubtedly influenced the common law in its adoption of the traditional concept of marriage. But superimposed on the common law, we now have relevant statutes such as the Marriage Act , the Bill of Rights and the Human Rights Act 1993. In the Marriage Act itself the prohibited degrees of affinity reach beyond matters relevant solely to procreation and associated genetic concerns, to matters involving deep seated social taboos which have no direct procreative rationale. The historical and religious factors which originally influenced the traditional concept of marriage cannot now logically bear on whether that concept discriminates against same sex couples. Whether there is such discrimination must depend on the true construction of the relevant legislation. However, if such discrimination is found to exist, the question whether our multi-cultural and secular society wishes nevertheless to maintain the traditional concept of marriage is essentially a question of socio-legal policy for the legislature and not for the Courts. A radical change in an institution so fundamental to our society as marriage, with all the consequential effects, should be brought about by this Court only if we can discern with clarity and by a legitimate process of statutory interpretation that this is what Parliament has intended. Mr Harrison advanced his clientsı case skilfully and with eloquence. He suggested that marriage was a room over whose door various signs had been placed down the years. Those signs indicated who could and who could not pass through to married status. The writing on the signs has changed with changing times. Todayıs sign says ³heteros only². We were asked to remove the suggested discrimination by removing the sign, or by altering its wording. Whether this should be done, depends, as Mr Harrison recognised, on the proper construction of the Marriage Act 1955. We may interpret, but we cannot re-write or legislate. The Bill of Rights must be given its full effect in the necessary process of interpretation, but it may not be used as a concealed legislative tool. It is clearly implicit in what the Bill of Rights says, (section 4), and what it does not say, that Parliament has reserved to itself all legislative functions. Furthermore, it is significant that on most, if not all of the occasions when Mr Harrisonıs sign has been changed, this has been done by Parliament and not by the Courts. Discrimination Section 19(1) of the Bill of Rights provides that everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. Among such grounds are sex (meaning gender) and sexual orientation, (meaning a heterosexual, homosexual, lesbian or bisexual orientation). Discrimination as such is not defined in the Human Rights Act. Some guidance to its meaning can be found in s65, which deals with the subject of indirect discrimination. That section speaks of conduct and other things having the ³effect of treating a person or group of persons differently on one of the prohibited grounds of discrimination². The section does not expressly identify the person or group with whom the necessary comparison is to be made, but that must be either persons generally or another person or group whose treatment is logically relevant to the person or group alleging discrimination. The essence of discrimination lies in difference of treatment in comparable circumstances. For discrimination to occur one person or group of persons must be treated differently from another person or group of persons. Of course difference of treatment will not necessarily in itself amount to discrimination; and not all discrimination will be unlawful. In considering whether there is discrimination, it is necessary to define two things: first, the subject matter of and, second, the basis for the alleged discrimination. What does the difference of treatment relate to and upon what factor or factors is the difference based? The approach adopted to both these matters can affect the outcome. The position in competition law cases is similar; the definition of the market can often affect the conclusion reached. In deciding what is the subject matter of the alleged discrimination and upon what factor or factors the difference of treatment is based, it is appropriate to adopt an approach which accords with the broad purpose of anti-discrimination laws. That purpose is to give substance to the principle of equality under the law and the lawıs unwillingness to allow discrimination on any of the prohibited grounds unless the reason for the discrimination serves a higher goal than the goal which anti-discrimination laws are designed to achieve. But before one reaches that question, which is usually one for Parliament to decide on behalf of society as a whole, it is necessary to define the subject matter with the broad purpose of anti- discrimination laws in mind. It will usually be desirable to decide whether there is discrimination before addressing the question whether any discrimination that is found to exist is lawful or justified. It is only if there is discrimination to start with that matters of lawfulness or justification arise. In some cases the comparability of the circumstances in which the different treatment takes place will require consideration. In framing those introductory observations, I have derived assistance from the several judgments in the case of Egan v Canada 124 D.L.R. (4th) decided by the Supreme Court of Canada. I have also considered the views of the House of Lords in Birmingham City Council v Equal Opportunities Commission [1989] 1 AC 1155. The candidates for the relevant subject matter in the present case are, first, the right to marry and, second, the right to marry a person of oneıs choice. If the first subject matter or suggested right is chosen, it is strongly arguable, and Mr McAteer did so argue, that there has been no discrimination either on the grounds of sex (gender) or on the grounds of sexual orientation. This is because all people are treated alike. No one has a right to marry a person of the same sex. There is no difference of treatment, because all are treated alike, irrespective of sex or sexual orientation. If the second subject matter or suggested right is adopted, again it can be and was said that all persons have a right to marry a person of their choice, save for the restrictions on choice which apply to all. For example, no one can choose a person of the same sex, or who is under age, or who is already married, or who is within the prohibited degrees. As these restrictions on choice apply to all it was argued that there is no discrimination. But a counter to that argument advanced by Mr Harrison is that the restriction of choice to persons of the opposite sex is unlikely to be material to people who are heterosexual, but is material to those who are homosexual or lesbian in their sexual orientation. On that basis it was argued that while in one sense the restriction on choice applies to all, in a practical and real sense the restriction only affects those with a same sex preference. While the restriction applies to all equally, its impact is of no general moment to people of one sexual orientation yet of considerable moment to those of another sexual orientation. Does this difference in impact based on a personıs sexual orientation make discriminatory a restriction, which, looked at in isolation of impact, can be analysed as involving no discrimination. It is perfectly understandable that those with a same sex orientation will see themselves as discriminated against, but in these circumstances should impact prevail over general analysis? If impact should prevail, it must follow that other restrictions on marriage would also have to be seen as discriminatory. No one in New Zealand is allowed to marry a person who is already married. Thus by analysis there is no discrimination because the restriction applies to all, but by impact there would be discrimination against those who have a preference for polygamy. The same would apply to those whose preference or desired choice is to marry a sister or a brother. Should we say that there is no discrimination in these circumstances because the restriction analytically applies to all; or should we say that there is discrimination by reason of impact but such discrimination is justified and not unlawful because it is a restriction circumscribing the right to choose a marriage partner which society regards as necessary and desirable. Reflecting that societal choice is legislation (i.e. the Marriage Act) which in terms of s4 of the Bill of Rights must prevail against any suggested breach of s19. These are difficult issues upon which final conclusions are not necessary in this case because of the clear meaning which must be given to the Marriage Act. I am also mindful of ss151 and 5 of the Human Rights Act. These sections in combination suggest that if the meaning to be given to the Marriage Act is clear, there is no need to come to any definite conclusion whether that meaning involves discrimination. Section 151(1) says that unless the Human Rights Act expressly says so, its terms are not to limit or affect any other Act. Section 151(2) says that unless the Human Rights Act expressly says so, nothing in the Act relating to certain grounds of discrimination shall affect anything done by or on behalf of the Government of New Zealand. Thus, until 31 December 1999 when s151 expires, the Human Rights Act cannot affect any other statute unless it expressly says so. Similarly, governmental action cannot be challenged for discrimination on the grounds of sexual orientation. It should be noted, however, that such action can be challenged on the ground of discrimination based on sex. Paragraphs (i) (j) and (k) of s5(1) of the Human Rights Act cast a duty on the Human Rights Commission to examine prior to 31 December 1998 all Acts and Regulations and any relevant policy or administrative practice of the Government of New Zealand. The Commission must determine whether there is any conflict in any of those areas with Part II of the Human Rights Act, or with the spirit and intention of the Act; and the Commission must report to the Minister of Justice by 31 December 1998 accordingly. So far as this case is concerned, the issue turns on the proper construction of the Marriage Act. Thus s151(1) applies. Even if, on its true construction, there is discrimination inherent in the Marriage Act, this Court cannot intervene: s4 of the Bill of Rights. In this respect, s151(1) is similar in effect to s6 of the Bill of Rights. It is to the Human Rights Commission that Parliament has given the duty to consider whether discrimination is to be found in any existing Act of Parliament. Although this Court may express a view, it is the Commission which at present has the primary responsibility for advising the Government on this issue. While I recognise that the original purpose behind ss151 and 5 of the Human Rights Act may no longer be secure, we cannot forecast or anticipate what, if any, change in the law may eventuate in this area. Nevertheless, subject to the matters just discussed it is important to recognise that the New Zealand Bill of Rights applies to acts done by the legislative branch of the Government of New Zealand as well as those done by the executive and judicial branches. Thus the principles of the Bill of Rights apply not only to acts of executive Government, such as those performed by the Registrar of Marriages, but also to the underlying legislation, albeit that Parliament is, of course, supreme and can depart from those principles if that is its perception of where societyıs best interests lie. I would not shrink from a firm decision on the issue of discrimination if such were necessary to decide this case, but it is not. However, as the point was fully argued and as other members of the Court are expressing their views on what is a very important topic, I think it appropriate to express my own views. The spirit of the Bill of Rights and the Human Rights Act suggests a broad and purposive approach to these problems. Such an approach leads to the proposition that it is preferable to focus more on impact than on strict analysis. If something (here legislation) has an impact on a person or group of persons which differs from its impact on another person or group of persons because of sexual orientation, that difference in impact amounts prima facie to a difference in treatment and thus to discrimination. That is so even though analytically it is possible to say that the circumstance applies equally to all. In reality this can be said only if one ignores the difference in impact. In real and practical terms the difference of treatment in its impact does not apply equally to all. In the present case the impact of the prohibition inherent in the Marriage Act against same sex marriages is much more significant for people with a same sex orientation than it is for people of heterosexual orientation. Indeed it can be said that in the case of heterosexual people there is little, if any, practical impact at all. Prima facie therefore I see the inability of homosexual and lesbian couples to marry as involving discrimination against them on the grounds of their sexual orientation. On that ground they are unable to enjoy the legal benefits which married status affords. Whether the discrimination so found is a breach of s19 of the Bill of Rights or is saved by s4 and whether, pursuant to s6, the Marriage Act can and therefore should be construed so as to avoid the discrimination are quite separate matters. The discrimination which prima facie arises on this approach against those who might wish to have two wives is entirely lawful because the Marriage Act forbids polygamy. That is the current will of the people expressed through Parliament and it prevails by dint of s4 of the Bill of Rights. Whether this should remain so is a matter of policy for Parliament. The same applies to the prima facie discrimination which arises because the Marriage Act does not allow same sex marriages. This situation, if analysed as discrimination, is not unlawful because, as discussed hereunder, the Marriage Act prevails and thus serves to legitimise the prima facie discrimination. However, if prima facie discrimination on a prohibited ground is found to exist at step one and it is neither legitimate under s4 of the Bill of Rights nor justifiable under s5, nor otherwise lawful, it will be unlawful and thus in breach of s19. In short, I would prefer to define the right (that is to be free from discrimination) with the purpose of anti-discrimination laws in mind, and then consider whether any suggested limitation is justified or otherwise lawful rather than circumscribe the content of the right at the outset. This accords more with the spirit and purpose of the Bill of Rights. In this kind of case it is better conceptually to start with a more widely defined right and legitimise or justify a restriction if appropriate, than to start with a more restricted right. Of course any such restriction or legitimation will, as is its purpose, pro tanto abrogate the right; but if restrictions which may be legitimate or justified in some circumstances are built into the right itself the risk is that they will apply in other circumstances when they are not legitimised or justified. The International Dimension I have written the foregoing section of this judgment without reference to any international materials. I do not consider reference to those materials in any way derogates from what I have written. Article 1 of the Convention on the Elimination of All Forms of Racial Discrimination defines such discrimination as meaning: any distinction, exclusion, restriction or preference based on ... which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. The United Nations Human Rights Committee prepared a General Comment in 1989 (General Comment 18, 37th Session, 1989) saying it believed that the term discrimination, as used in the International Covenant on Civil and Political Rights, should be understood: to imply any distinction, exclusion, restriction or preference which is based on any ground such as ... and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. This general approach is relevant to the construction of New Zealandıs human rights legislation. Such legislation is to be afforded a liberal and purposive interpretation, rather than an interpretation of a technical kind: see NZ Van Lines Ltd v Proceedings Commissioner [1995] 1 NZLR 100, 103 per Smellie J, and Coburn v Human Rights Commission [1994] 3 NZLR 323, 333 per Thorp J. In Tavita v Minister of Immigration [1994] 2 NZLR 257, 266 Cooke P described the United Nations Human Rights Committee as being ³in a sense part of this countryıs judicial structure², because New Zealand citizens have direct rights of recourse to it. Thus, while in no way binding, the Committeeıs approach to the concept of discrimination is of direct relevance to New Zealand jurisprudence on the subject. Keith J has referred in much more detail than I to the international materials. The difference between his approach and mine appears to be that he considers there is no discrimination involved in this case because the definition of marriage limits the institution of marriage to couples of different sexes. I see the definition itself as creating prima facie discrimination, but I regard that prima facie discrimination as being lawful, and not in breach of s19 by dint of the combined effect of the Marriage Act 1955 and s4 of the Bill of Rights. I expand on the effect of the Marriage Act in the remaining part of this judgment. Marriage Act 1955 The Marriage Act was passed against a well established common law background. Mr Harrison emphasised the gender neutral language throughout most of the Act. But once it is accepted, as it must be, that in 1955 the concept of marriage was the traditional concept, the presence of largely gender neutral language cannot bear the weight which the appellants sought to place on it. All this point does is to leave more open the possibility of later reinterpretation without doing as much violence to the language of the Act. There is no definition of marriage in the Marriage Act. Some words and expressions are regarded as so well understood that they do not need definition. In 1955 marriage was one of those words. Everyone proceeded on the basis that the word marriage signified the traditional concept of marriage. There are indeed reflections of this in the text of the Act, particularly in s15 and the Second Schedule. Before moving to them, I should notice s31(3), which provides: During the solemnisation of every such marriage each party to it shall say to the other: . . . I, A.B., take you C.D., to be my legal wife (or husband), or words to similar effect. This declaration is based on the premise that the parties to the marriage will be a man and a woman. The words wife and husband are gender specific. Mr Harrison argued that the ability to use words to similar effect meant same sex marriage could be accommodated. The statutory words of declaration imply that a man is speaking to a woman and vice versa. If different words were used consistent with a man speaking to a man or a woman to a woman, it could hardly be said that the words were to similar effect. So here is a pointer within the Act itself that marriage was and continues to be seen in its traditional sense. That perspective is reinforced by s15 which deals with the prohibited degrees of relationship. The section starts by saying that subject to its terms a marriage which is forbidden by the provisions of the Second Schedule is void. The Second Schedule, which lists forbidden marriages, is in two parts. Part 1 lists the people ³a man may not marry² and Part 2 lists the people ³a woman may not marry². All the people on each list are people of the opposite sex. A man may not marry his listed female relations, and a woman may not marry her listed male relations. In some cases, the relationship is by blood (consanguinity) and in other cases the relationship is by marriage (affinity). Mr Harrison accepted that a substantial anomaly would arise if a man could not marry his sister, but could marry his brother. He sought to escape from this difficulty by suggesting that under s4 of the Acts Interpretation Act 1924 the words ³man² and ³woman² could be deemed to include the opposite gender with a consequential reading of the words ³his² and ³her² to include the opposite sex also. Section 4 applies unless the context otherwise requires. Here it clearly does. To read the Second Schedule in the way suggested by Mr Harrison would amount to legislation rather than any process of legitimate interpretation. In short, the Second Schedule is a clear indication that marriage can only take place between a man and a woman. This view is supported by the words which I have emphasised below in s15(2): Any persons who are not within the degrees of consanguinity but are within the degrees of affinity prohibited by the said Second Schedule may apply to the High Court for its consent to their marriage, and the Court, if it is satisfied that neither party to the intended marriage has by his or her conduct caused or contributed to the cause of the termination of any previous marriage of the other party, may make an order dispensing with the prohibition contained in the Second Schedule to this Act ... The expression ³neither party² to the intended marriage leads on to the words ³his or her². It is semantically possible to read those words as referring to ³his² conduct in an intended same sex marriage between males and ³her² conduct in an intended marriage between females. But the far more natural reading is that an intended marriage between a man and a woman was in contemplation and the duality of sex is mirrored by the use of the expression ³his or her². These various points, to a greater or lesser extent, all go to reflect the underlying common law meaning of marriage inherent in the Marriage Act. Section 28 requires a Registrar to issue a marriage licence or to solemnise a marriage, save in the specified circumstances. Omitting the proviso, which is not relevant, s28 says: A Registrar shall issue a marriage licence or solemnise a marriage, as the case may be, unless he has reasonable cause to believe that the marriage is prohibited by this Act or that any of the requirements of this Act have not been complied with: Here the Act proceeds on the basis that certain marriages are prohibited by the Act itself; but that does not mean that all marriages not so prohibited are allowed. The section says that the requirements of the Act must be complied with. Those requirements include a statutory declaration under s23(2) in which the person giving notice of the intended marriage must state that the marriage is not prohibited by s15, and, further, that there is no other lawful impediment to the intended marriage. This clearly shows that lawful impediment can be found outside the express prohibitions in the Act. An example is where one of the parties to the intended marriage is already married. This is a clear lawful impediment, but there is no express provision for it in the Act. A similar lawful impediment found outside the Act is the fact that the parties to the intended marriage are of the same sex. The lawful impediment in both instances (bigamy and same sex) derives from the traditional concept of marriage upon which the Act is based. The impediment does not have to be found within the Act itself. The result is that both under the Act itself and under the common law upon whose concept of marriage the Act was built a personıs choice of marriage partner is circumscribed by a number of matters including age, gender, relationship and existing matrimonial status. All these matters constitute lawful impediments. Thus far there cannot therefore be any doubt that marriage for the purposes of the Marriage Act means the traditional concept of marriage. Legislation after enactment of Bill of Rights For the purpose of deciding whether, pursuant to s6 of the Bill of Rights, the Marriage Act can, notwithstanding this background, now be interpreted so as to allow same sex marriages, it is appropriate to examine relevant legislation enacted since the Bill of Rights came into force. To the extent that such legislation supports the traditional concept of marriage, it will become more difficult to hold in terms of s6 that the Marriage Act can now be interpreted as the appellants suggest. But if a shift in the meaning of marriage can be discerned from such material, that will support the case for a reinterpretation of the Marriage Act to accord with the shift. There are two particular statutes and one set of statutory regulations which give guidance to Parliamentıs contemporary understanding of marriage. The Domestic Violence Act 1995 defines the word partner for the purposes of that Act by including, first, the relationship created by a legal marriage, and, second ³any other person (whether the same or the opposite gender) with whom the person lives or has lived in a relationship in the nature of marriage (although those persons are not, or were not, or are not or were not able to be, legally married to each other². While, as both counsel pointed out, the inability to marry of which the provision speaks could relate to defacto couples, one or both of whom are married to someone else, and indeed, to other circumstances, the express inclusion of same sex couples in the definition means that the concept of inability to marry can also refer naturally to them. While the point is by no means decisive, it supports the view that in 1995 Parliament regarded same sex couples as being unable to marry. The Births, Deaths and Marriages Registration Act 1995 contains in s55 provisions directing what formal steps a marriage celebrant must take in solemnising a marriage. First, the celebrant must enter on both forms provided under s24 of the Marriage Act with the licence for the marriage the prescribed information relating to the marriage. Then, and importantly, the celebrant must ³ensure that both forms are signed by the husband, the wife, and 2 other witnesses to the solemnisation². I cannot accept Mr Harrisonıs submissions seeking to overcome the difficulty for his argument inherent in the form having to be signed by the husband and the wife. I do not regard it as possible to take the view that these gender specific words were ³simply a shorthand way of referring to each of the parties to a marriage ceremony in their turn². The words clearly signal that a legal marriage must be between a man and a woman. The change from the corresponding provision in the Marriage Act is more than a matter of drafting convenience. The language clearly denotes that in 1995 Parliament still viewed marriage in traditional terms. Indeed, the change of language from gender neutral to gender specific might be thought to underline the point. Nor am I persuaded that the fact that s55 deals with procedural matters makes any difference. Section 77(6)(c) of the Births, Deaths and Marriages Registration Act points in the same direction as s55. Section 77 deals with the correction of errors in the registration of a personıs sex and also with changes to gender as a result of sexual assignment or reassignment. For privacy reasons the legislation restricts access to the relevant records. Subsection (6)(c) allows the Registrar to permit a marriage celebrant to inspect any document if the celebrant wishes to inspect that document for the purpose of investigating whether or not the parties to a proposed marriage are a man and a woman. It is significant that the subsection does not say a man or a woman; it says a man and a woman. This clearly implies that marriage is a status available only to a man and a woman. Mr Harrison sought to escape from this difficulty by submitting that the provision was not unambiguously inconsistent with same sex marriage. He suggested that some clergy or other marriage celebrants might have a conscientious objection to marrying same sex couples and this was the reason for the provision. While it is possible that this fact may have influenced the legislation to some degree, it is more likely in the circumstances and in the context of s77 that Parliament was giving a means of checking the sex of a person in the light of its continuing understanding that marriage could take place only between a man and a woman. Similar considerations apply to s30(2) of the Births, Deaths, and Marriages Registration Act. The Registrar-General must register declarations of the Family Court as to a personıs nominated sex but not if the person concerned is then lawfully married to a person of the nominated sex. The rationale for this must surely be an unwillingness on the part of Parliament to have persons of the same sex shown as married to each other. While none of these provisions are decisive in themselves, I consider that together their presence in the 1995 legislation strongly supports the view that in 1995 Parliament still viewed marriage in traditional terms. The Marriage Act must therefore have been understood in the same light. A similar conclusion derives from a consideration of the Marriage (Forms) Regulations 1995. All the forms prescribed by these regulations, which were made pursuant to s64 of the Marriage Act, use in the relevant places the gender specific words ³bride² and ³bridegroom². That mode of expression is entirely consistent with the traditional concept of marriage and inconsistent with same sex marriage. The point is demonstrated by the evidence in the present case which shows that when two of the parties used the prescribed forms the word ³bridegroom² had to be amended to the word ³bride² with the effect that the intended marriage was between bride and bride. It is permissible in certain cases, such as the present, to refer to regulations to assist in the construction of a statute: see Interfreight Ltd v Police (CA 61/97, judgment 21 July 1997). Here the total consistency between the statute and the regulations in the meaning of the word marriage is significant. The 1995 regulations could hardly have been drafted as they were unless marriage was still viewed in traditional terms. A number of other statutes were referred to in argument. It is not necessary to cite any of their terms. Nowhere is there any support for the suggestion that Parliamentıs view of marriage has changed from the traditional concept. A survey of other legislation shows also that any change from the traditional concept of marriage would have ramifications beyond the immediate scope of the Marriage Act. It is a change which could hardly be appropriately managed through a declaration pertaining solely to that Act. Consequential amendments, or at least careful consideration of where they might be necessary, would arise in a number of areas of the law in which the status of marriage is relevant. That said, I return to the fundamental question, indeed the question upon which this case turns. That question, which arises under s6 of the Bill of Rights, is whether the Marriage Act can properly be given the meaning for which the appellants contend. They assert that such meaning is necessary to achieve consistency with the right to freedom from discrimination provided for in s19. Only if such meaning can properly be given may it be preferred to any other meaning. By properly I mean by a legitimate process of construction. I have come to the conclusion that the meaning for which the appellants contend cannot properly be given to the Marriage Act. On its enactment the Marriage Act was clear beyond doubt in the meaning which it attributed to the concept of marriage. The legislation passed after the enactment of the Bill of Rights supports that initial meaning. Nothing has been identified which points towards the appellantsı meaning. There is no basis therefore upon which the Marriage Act can (in terms of s6) be interpreted as permitting same sex marriage. In addition to those points, it is highly unlikely that Parliament would have intended to make such a substantial change to one of societyıs fundamental institutions by the indirect route of s19 and s6 of the Bill of Rights. In their comprehensive submissions the parties, and in particular the appellants, referred to a substantial amount of case law in other jurisdictions. They also referred to international instruments. While some of this material has been helpful in a background and indirect way, it does not really assist the appellants. Indeed, I agree with Mr Harrisonıs final submission that at the end of the day what the Courts or legislatures of other countries may have concluded concerning same sex marriage is largely, if not wholly, irrelevant to the central issue. This is the meaning to be accorded to the Marriage Act 1955 in the light of all relevant New Zealand material. The New Zealand legislature has signalled that discrimination on the grounds of sexual orientation and gender should not be sanctioned by the Courts of this country. Yet, as Mr Harrison properly recognised, that signal cannot prevail if there is express legislative provision to the contrary. Here there is. Both at the time of its enactment and today the Marriage Act 1955 stipulates that marriage may take place only between a man and a woman. If that is discrimination Parliament has expressly sanctioned it. On that basis, I would dismiss the appeal. Solicitors Recordon & Co, Onehunga, for Appellants Crown Law Office, Wellington, for Respondent 2 4 26 23 18