The Marriage Act 1955 doesn’t say I can’t marry a man or that a woman can’t marry a woman.
But the courts have ruled that it wasn’t Parliament’s intent to enable same-sex marriage and that it’s up to Parliament, not the courts, to declare whether same-sex marriages are lawful, not the courts. It’s a fair call.
Back when the Marriage Act was enacted, homosexual activity was a crime carrying a maximum of life imprisonment. It’s a safe bet that parliamentarians then weren’t envisaging they were passing a law that would enable two men to apply for a marriage licence.
A very safe bet.
But even then the law had softened towards homosexuality.
Parliamentarians in the early days were hard core and set the penalty for homosexual activity as death. The death penalty for buggery was removed in 1867.
The 1893 New Zealand Criminal Code was still discouraging: “Everyone is liable to imprisonment with hard labour for life, and, according to his age, to be flogged or whipped, once, twice or thrice, who commits buggery either with a human being or with any other living creature”.
The flogging for buggery was removed in 1941 and hard labour removed in 1954.
The 1961 Crimes Act reduced the maximum sentence for sodomy between consenting adult males to seven years’ prison.
The big change was in 1986, when Parliament voted by a narrow margin to decriminalise homosexual activity. Consensual sex between men was no longer a crime.
A very interesting history lesson. And I’m willing to bet that at every stage, there were probably opponents who warned that this law change would be awful for New Zealand. They were wrong every time. Hell, as an 18 year old student I was against, due to the fact my views were based on fear and ignorance, rather than principle.
Is there a single MP alive today who voted against decriminalising homosexual activity in 1986, and doesn’t regret it? I doubt it. People may be surprised at some of those who voted against.
Stan Rodger, Peter Tapsell, John Terris, Whetu Tirakatene-Sullivan, John Banks, Bill Birch, Jim Bolger, Philip Burdon, Michael Cox, Warren Cooper, Paul East, Tony Friedlander, Jim Gerard, Doug Graham, Doug Kidd, Denis Marshall, Roger McClay, Don McKinnon, Jim McLay, Winston Peters, Ruth Richardson, Lockwood Smith, Simon Upton, Venn Young were some of the 44 votes against. It only passed 49 votes to 44.
Only three National MPs voted for it – George Gair, Katherine O’Regan and Ian McLean.
I know a lot of those who voted against it, and they are good people. But I bet you the vast majority of them 25 years on regret their vote. It must be tough to have on your record that you voted for consensual sex between two adults to remain a criminal offence.
While I respect legitimate and sincere views against same sex marriage, I do think there will be quite a few MPs who vote against who will end up with regrets in the future. Same sex marriage is absolutely inevitable in my view, as support for it is massively high amongst under 35s. And in 15 years time, nothing will have changed except some gay couples will be married, rather than just in a civil union.
But the MPs who voted against will find that in 15 years time, many New Zealanders will find it incomprehensible that they voted against allowing same sex couples to marry – just as in 2010 we find it incomprehensible that such good MPs such as Jim Bolger, Philip Burdon, Michael Cox, Paul East, Doug Graham, Doug Kidd, Don McKinnon, Jim McLay, Ruth Richardson, Simon Upton and Venn Young voted to retain a law which made consensual adult sex punishable by up to seven years in jail.
Can anyone find an MP who voted No in 1986, and would vote the same way today on the same law?
Consensual sex between women was never illegal in New Zealand. Early legislators thought such a thing impossible and didn’t like to think about it and so never criminalised it.
Good old Queen Victoria!
I have enormous respect for conservative values and traditional ways of doing things. But here’s the question for those pushing traditional values against same-sex marriage: what tradition do you want our Parliament to push back to? The death penalty? Flogging? Hard labour? Life imprisonment? Seven years’ jail?
Our Parliament has a sad and sorry history in its treatment of two adults who just want to love and be with one another.
Let’s hope with Louisa Wall’s bill that history is finally made just that: history.