18 November 2018

Civil unions ‘social apartheid’, says Waring

1 May 2007

By Joseph Barratt: Te Waha Nui Online

Professor Marilyn Waring … supports same-sex marriage from human rights perspective.

The Civil Union Act is “social apartheid”, says a prominent human rights activist and recently appointed professor at AUT University.

Dr Marilyn Waring, a former MP and a long standing activist for women’s rights, is now a professor in AUT’s Institute of Public Policy

In her inauguration lecture, Dr Waring said she believed civil unions were discriminatory and New Zealand had failed to treat same-sex marriage from within the correct human rights framework.

The Civil Union Act was enacted in December 2004. Its purpose is to establish an institution similar to marriage for same-sex couples.

Dr Waring’s lecture analysed how New Zealand and Canada have similar human rights legislation and how in both countries the movement for same-sex marriage gained force in the 1990s. 

However, while Canada adopted marriage, New Zealand ended up with a “separate but equal” solution.

Same-sex marriages were officially legalised nationwide across Canada in July 2005. The Canadian act legally incorporated same-sex couples into the institution of marriage, giving them the same rights as heterosexual couples.

Couples joined under the New Zealand Civil Union Act have virtually all the same rights as heterosexual marriages, except for the right for adoption.

‘Principles of justice’
Canada, Dr Waring claims, approached the question of same-sex marriage as one “about principles of justice, about human rights and equality and dignity. 

“Equality and dignity were not about creating a separate but equal regime,” she said.

Dr Waring compared the Civil Union Act to other civil and human right issues that marked the 20th century, such as apartheid in South Africa, segregation in the United States, the women’s rights movement, and Israeli treatment of Arabs.

“We have all lived through ‘separate but equal’,” she said.

“Its not pretty… It’s not over.”

However, not everyone agrees with Dr Waring’s point of view.

Labour MP Tim Barnett was a strong supporter of the Civil Union Act and was a leading member of the advisory group set up by the Labour government. He disputes claims of social apartheid, saying “civil unions are something special and different to reflect the times”.

He says most people are happy with the civil union.

“Many people call civil unions, marriage,” says Barnett.

“Civil unions are open to both same-sex and heterosexual couples.”

Equality and dignity
The advisory group, Dr Waring claims, looked at the issue by looking at what was politically achievable rather than from a human rights framework which looked at equality and dignity.

Barnett said that if they had gone for marriage, it would have been damaging to the gay and lesbian right cause because it would have failed.

“It would never have made it through Parliament,” Barnett.

Dr Waring’s stance on the Civil Union Act is supported by the New Zealand Human Rights Commission.

The Human Rights Commission website states that “full equality and non-discrimination would best be achieved by permitting access to the Marriage Act for same-sex couples”

However it follows that by pointing out that the Civil Union Bill does make significant progress towards the twin goals of equality and non-discrimination.

Barnett did not rule out its possibility of same-sex couples being incorporation into marriage in the future.

But it is unlikely to be in my political generation.” He said.

Court case examples
Dr Waring used examples of court cases to show New Zealand and Canada’s framing of the issue.

Before the Civil Union Bill, three lesbian couples took their case for marriage to the High Court of New Zealand. The crown argued that “the limitation of rights was reasonable and demonstrably justifiable in a free and democratic society”.

It argued that as procreation was important to marriage, there was no grounds for discrimination as a same-sex couple lacked the capacity to have children.

Dr Waring claims the argument is an example of New Zealand failing to look at the dignity and human rights issues surrounding the claim.

Dr Waring commented on the lack of discourse on human rights, such as dignity and equality, and showed how in a similar case the Canadian courts kept those issues in mind.

The Quebec and British Columbia Supreme Court found that when looking at whether a law affects someone’s dignity, it should be considered from the point of view of “not solely a reasonable person, but a reasonable person dispassionate and fully appraised of the circumstances”.

This ultimately lead to the decision to allow same-sex marriages.

Dr Waring points out that, human rights issues cannot be decided by a majority, historically that has led to disaster.

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