New Zealand's Parliament has adopted legislation to recognize same-sex partnerships without legalizing same-sex marriage, while Canada's Supreme Court has held the government has a right to legalize same-sex marriage.
New Zealand lawmakers passed the so-called Civil Union Bill 65-55, after opponents tried and failed to force a national referendum on the issue. The law would take effect in April 2005 but would not change New Zealand's legal definition of marriage to mean a man and a woman. It would, however, give same-sex couples legal rights similar to those of married couples.
The Supreme Court of Canada ruled December 9 in reference to four questions regarding the federal government's proposed legislation to change the definition of marriage, which currently holds it is strictly between a man and a woman. The high court did not rule whether that current definition is constitutional.
The unanimous opinion also said Canada's Charter of Rights and Freedoms protects religious freedom but that "times have changed," and so should the legal definition of marriage.
"Several centuries ago, it would have been understood that marriage be available only to opposite-sex couples," the justices held. "The recognition of same-sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion that the same is true today."
That isn't quite what some New Zealand conservatives thought. Destiny Church leader Brian Tamaki protests the bill publicly. On the other hand, New Zealand's conservation minister Chris Carter – himself planning a civil union with his partner, Peter Kaiser, as soon as the New Zealand law takes effect – said Parliament's passing the bill meant "tremendous joy and enthusiasm. We," he said, meaning all same-sex couples, "will have an opportunity we have always been denied."
And the New Zealand minister in charge of the bill, David Benson-Pope, said the law will take nothing from marriage. "Once this bill is passed and the sky doesn't fall in the opposition to it will very quickly evaporate," he told reporters. "It gives the simplest of things: the formal recognition and respect by our laws for the individual choices of New Zealanders."
It may not be so simple in Canada, where a same-sex marriage bill might pass, if at all, by only a slim margin.
The four questions posed by the Supreme Court included whether Canada's Parliament has exclusive legislative authority to change the legal definition, which the high court held they do. A second asked whether extending marriage to include same-sex couples conformed to the Charter of Rights and Freedoms, to which the high court also said yes.
The third asked whether religious leaders were protected under the Charter from having to marry same sex couples, to which the Court also said yes.
Prime Minister Paul Martin – who applauded the high court finding and pledged the government to move forward with the legislation in question – added a fourth question after he took over from former Prime Minister Chretien, asking whether the traditional opposite-sex marriage definition is constitutional. The Court elected not to answer.
Canada's Conservative opposition leader Stephen Harper praised what he called the high court's "muted rebuke" of how the federal government handled the matter and effective "chastise[ment]… for not appealing lower court decisions." Lower courts ruled the traditional definition of marriage as opposite sex was unconstitutional.
But Justice Minister Irwin Cotler said the court went as far as it could go to support the proposed same-sex legislation in draft. "Now it's up to us to assume the responsibilities as a government," Cotler said, "and happily we've got the Supreme court's support to assume that responsibility."
Martin said he would hold what Canadian procedure calls a two-line whip vote, meaning the Canadian Cabinet ministers would have to vote for same sex marriage, while "backbench" members of Parliament could vote as they chose. The bill at this writing is expected to pass by a very narrow margin.
