Private International Law (IX Semester)

“SAME-SEX MARRIAGES: POSITION IN VARIOUS COUNTRIES”

Submission To: Submitted By:

Ms. Nidhi Sharma Kanchan Kumawat

Faculty of Private International Law

Designation: Assistant Professor Session: Aug-Dec, 2017

Semester-IX

School of Law, Raffles University, Neemrana

 TABLE OF CONTENTS

1) ACKNOWLEDGEMENT------------------------------------------------------3

2) INTRODUCTION-------------------------------------------------------------4

3) MEANING--------------------------------------------------------------------4

4) BACKGROUND--------------------------------------------------------------4
5) DEVELOPMENT--------------------------------------------------------------5

6) POSITION OF SAME SEX MARRIAGES IN VARIOUS COUNTRIES--------7

7) CONCLUSION----------------------------------------------------------------16

8) BIBLIOGRAPHY--------------------------------------------------------------18

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 ACKNOWLEDGMENT

We take this opportunity to express my humble gratitude and personal regards to Ms. Nidhi
Sharma for inspiring and guiding us during the course of this project work and also for her
cooperation and guidance from time to time during the course of this project work on the
topic.

Place:- Neemrana,
Date of Submission:- 20th Dec 2017 Names of Students

Kanchan Kumawat

Love Sharma

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Introduction:
This Project deals with the position of Same Sex Marriages in various countries.. Moreover,
this project also deals with how these marriages have been recognised and have been denied
any status too.

Meaning:
Same-sex marriage, also known as gay marriage, is marriage between people of the same sex,
either as a secular civil ceremony or in a religious setting. The term marriage equality refers
to a political status in which same-sex marriage and opposite-sex marriage are considered
legally equal.
Some proponents of legal recognition of same-sex marriage, such as Freedom to Marry and
Canadians for Equal Marriage, use the terms marriage equality and equal marriage to
indicate that they seek equal benefit of marriage laws as opposed to special rights.1
Opponents of the legalization of same-sex marriage sometimes characterize it as redefining
marriage or redefined marriage, especially in the United States. The term homosexual
marriage is generally used by organisations opposed to same-sex marriage such as the
Family Research Council in the United States; that term is rarely used in the mainstream
press.2

Background:
In the late 20th century, rites of marriage for same-sex couples without legal recognition
became increasingly common. The first law providing for marriage of people of the same sex
in modern times was enacted in 2001 in the Netherlands. As of 15 November 2017, same-sex
marriage is legally recognized (nationwide or in some parts) in the following countries:
Argentina, Belgium, Brazil, Canada, Colombia, Denmark, Finland, France, Germany,
Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway,
Portugal, South Africa, Spain, Sweden, the United Kingdom, the United States and Uruguay.
Same-sex marriage is likely to soon become legal in Taiwan, after a constitutional court
ruling in May 2017. Polls show rising support for legally recognizing same-sex marriage in
1
Pratt, Patricia (29 May 2012). "Albany area real estate and the Marriage Equality Act". Albany Examiner.
Retrieved 25 December 2012. On July 24, 2011 the Marriage Equality Act became a law in New York State
forever changing the state's legal view of what a married couple is.
2
"Ten Arguments From Social Science Against Same-Sex Marriage". FRC.org. Family Research Council.
Archived from the original on 28 September 2015. Retrieved 4 January 2016, it is unlikely that homosexual
marriage would domesticate men in the way that heterosexual marriage does.

4
the Americas, Australia and most of Europe. However, as of 2017, South Africa is the only
African country where same-sex marriage is recognized. Taiwan would become the first
country in Asia to legalize same-sex marriage if the Civil Code is amended. Two other Asian
countries, namely Israel and Armenia recognize same-sex marriages performed outside the
country for some purposes.

Development:
a) Ancient:
A reference to same-sex marriage (by the Egyptians and Canaanites) exists in the Talmud.
The Old Testament prohibited homosexual relations (Lev. 18:22, 20:13), and the Jewish
sages provide the reason for this as being that the Hebrews were warned not to "follow the
acts of the land of Egypt or the acts of the land of Canaan." The sages explicitly state: "what
did [the Egyptians and Canaanites] do? A man would marry a man and a woman [marry] a
woman."3
What is arguably the first historical mention of the performance of same-sex marriages
occurred during the early Roman Empire according to controversial historian John Boswell.
These were usually reported in a critical or satirical manner. Child emperor Elagabalus
referred to his chariot driver, a blond slave from Caria named Hierocles, as his husband. He
also married an athlete named Zoticus in a lavish public ceremony in Rome amidst the
rejoicings of the citizens.4
The first Roman emperor to have married a man was Nero, who is reported to have married
two other males on different occasions. The first was with one of Nero's own freedmen,
Pythagoras, with whom Nero took the role of the bride. Later, as a groom, Nero married
Sporus, a young boy, to replace the adolescent female concubine he had killed and married
him in a very public ceremony with all the solemnities of matrimony, after which Sporus was
forced to pretend to be the female concubine that Nero had killed and act as though they were
really married. A friend gave the "bride" away as required by law. The marriage was
celebrated in both Greece and Rome in extravagant public ceremonies.
It should be noted, however, that conubium existed only between a civis Romanus and a civis
Romana (that is, between a male Roman citizen and a female Roman citizen), so that a
marriage between two Roman males (or with a slave) would have no legal standing in Roman

3
Rabbi Joel Roth. Homosexuality rabbinicalassembly.org 1992.
4
Bunson, M., Encyclopedia of the Roman Empire, Infobase Publishing, 2009, p. 259.

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law (apart, presumably, from the arbitrary will of the emperor in the two aforementioned
cases). Furthermore, according to Susan Treggiari, "matrimonium was then an institution
involving a mother, mater. The idea implicit in the word is that a man took a woman in
marriage, in matrimonium ducere, so that he might have children by her."[123]
In 342 AD, Christian emperors Constantius II and Constans issued a law in the Theodosian
Code (C. Th. 9.7.3) prohibiting same-sex marriage in Rome and ordering execution for those
so married.5

b) Contemporary:
Writing in Harvard Magazine in 2013, legal historian Michael Klarman wrote that while there
was a growth of gay rights activism in the 1970s United States, "Marriage equality was not
then a priority." He argued that many gay people were not initially interested in marriage,
deeming it to be a traditionalist institution, and that the search for legal recognition of same-
sex relationships began in the late 1980s. Others, such as Faramerz Dabhoiwala writing for
The Guardian, say that the modern movement began in the 1990s.
Denmark was the first country to recognize a legal relationship for same-sex couples,
establishing "registered partnerships" in 1989. This gave those in same-sex relationships
"most rights of married heterosexuals, but not the right to adopt or obtain joint custody of a
child". In 2001, the Netherlands became the first country to permit same-sex marriages.
Since then same-sex marriages have been permitted and mutually recognized by Belgium
(2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2009), Sweden (2009),
Portugal (2010), Iceland (2010), Argentina (2010), Denmark (2012), Brazil (2013), France
(2013), Uruguay (2013), New Zealand (2013), Luxembourg (2015), the United States(2015),
Ireland (2015), Colombia (2016), Finland (2017), Malta (2017) and Germany (2017).
In Mexico, same-sex marriages are performed in a number of states and recognised in all
thirty-one states. In Nepal and Taiwan, their recognition has been judicially mandated but not
yet legislated. Furthermore, most jurisdictions of the United Kingdom have also legalised
same-sex marriage, with the first being England and Wales in March 2014, followed by
Scotland in December of the same year. Same sex marriage is not legal in Northern Ireland.

5
Treggiari, Roman Marriage (Oxford, 1991), p. 5.

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Position of Same Sex Marriages in the following countries:
a) India:
Law regarding same-sex sexual activity:
The Goa Inquisition once prosecuted the capital crime of sodomy in Portuguese India[],
but not lesbian acts6.
The Mughal empire combined a number of the preexisting Delhi Sultanate laws into the
Fatawa-e-Alamgiri, mandating a common set of punishments for Zina (unlawful
intercourse, these could include 50 lashes for a slave, 100 for a free infidel, or death by
stoning for a Muslim7.
The British Raj criminalised sexual activities "against the order of nature", arguably
including homosexual sexual activities, under Section 377 of the Indian Penal Code,
which entered into force in 1861. This made it an offence for a person to voluntarily have
"carnal intercourse against the order of nature." In 2009, the Delhi High Court decision in
Naz Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions
against private, adult, consensual, and non-commercial same-sex conduct to be in direct
violation of fundamental rights provided by the Indian Constitution. According to a ruling
by the Indian Supreme Court, decisions of a high court on the constitutionality of a law
apply throughout India, and not just to the territory of the state over which the high court
in question has jurisdiction.8 However, there have been incidents of harassment of
homosexual groups.9
On 23 February 2012, the Ministry of Home Affairs expressed its opposition to the
decriminalisation of homosexual activity, stating that in India, homosexuality is seen as
being immoral. The Central Government reversed its stand on 28 February 2012,
asserting that there was no legal error in decriminalizing homosexual activity. This
resulted in two judges of the supreme court reprimanding the central government for

6
Sharma, Jai. "The Portuguese Inquisition in Goa: A brief history". Indiafacts.org.
7
A digest of the Moohummudan law pp. 1-3 with footnotes, Neil Baillie, Smith Elder, London
8
Kusum Ingots v. Union of India, (2004) 6 SCC 254: "An order passed on a writ petition questioning the
constitutionality of a Parliamentary Act, whether interim or final, keeping in view the provisions contained in
Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of
course to the applicability of the Act."
9
Pervez Iqbal Siddiqui (28 December 2010). "Crackdown on gay party in Saharanpur, 13 held". The Times of
India. Retrieved 20 January 2011.

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 frequently changing its stand on the issue. "Don't make a mockery of the system and don't
waste the court's time," an apex court judge told the government.10
On 11 December 2013, the supreme court set aside the 2009 Delhi High Court order
decriminalizing consensual homosexual activity within its jurisdiction.11
On January 28, 2014, the Supreme Court of India dismissed the review petition filed by
the central government, NGO Naz Foundation and several others, against its December
11 verdict on Section 377 of IPC. In explaining the ruling, the bench said: "While reading
down Section 377, the High Court overlooked that a minuscule fraction of the country’s
population constitutes lesbians, gays, bisexuals or transgender people, and in the more
than 150 years past, less than 200 persons have been prosecuted for committing offence
under Section 377, and this cannot be made a sound basis for declaring that Section ultra
vires Articles 14, 15 and 21."
On December 18, 2015, Shashi Tharoor, a member of the Indian National Congress party,
introduced the bill for the decriminalisation of Section 377, but the bill was rejected by
the house by a vote of 71-24. However, Shashi Tharoor is planning to re-introduce the
bill.
Human Rights Watch12expressed worries that this would render homosexual couples
vulnerable to police harassment, saying: "The Supreme Court's ruling is a disappointing
setback to human dignity, and the basic rights to privacy and non-discrimination" The
Naz Foundation (India) Trust stated that it would file a petition for review of the court's
decision.
On February 2, 2016, the supreme court decided to review criminalisation of homosexual
activity. The hearing date for the curative petition related to Section 377 which is to be
taken up by the constitutional bench is not known. In 2016, Kerala mooted free sex-
reassignment surgeries in government hospitals after it introduced the first state
government policy on transgender people.13

10
"Supreme Court pulls up Centre for flip-flop on homosexuality". The Indian Express. 28 February 2012.
Retrieved 9 September 2014.
11
Suresh Kumar Kaushal vs. Naz Foundation, CIVIL APPEAL 10972 OF 2013
12
IANS (2013-12-11). "Apex court ruling disappointing: rights body". Business Standard India. Retrieved 2017-
09-14.
13
"How Kerala left the country behind on transgender rights | Latest News & Updates at Daily News &
Analysis" Retrieved 2016-03-19

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 Recognition of same-sex relationships:
India does not have a uniform civil code and every citizen has the right to choose the civil
code that applies to them based on their community or religion. Although marriage is
legislated at the federal level, the existence of multiple marriage laws complicates the
issue. The following Acts cover Marriage Laws in India:
1. Indian Christian Marriage Act of 1872
2. Special Marriage Act, 1954
3. Hindu Marriage Act, 1955
4. Muslim Marriages are not codified and are governed by Islamic Sharia Law (see
The Muslim Personal Law (Shariat) Application Act, 1937)
5. Parsi Marriage Act, 1936
6. Anand Marriage Act, 1909
None of the codified Marriage Acts enacted by the Union of India explicitly defines
marriage between a man and a woman. Neither do these acts explicitly prohibit same sex
unions. However, the laws have "heteronormative underpinnings" and have been
interpreted not to recognise same-sex unions.
A draft of a new Uniform Civil Code has been proposed that legalizes marriage equality
besides adoption.14
"It defines marriage as “the legal union as prescribed under this Act of a man with a
woman, a man with another man, a woman with another woman a transgender with
another transgender or a transgender with a man or a woman"."All married couple and
couples in partnership entitled to adopt a child. Sexual orientation of the married couple
or the partners not to be a bar to their right to adoption. “Non-heterosexual couples will
be equally entitled to adopt a child,".

Case Study:
Gay Pride March in Bangalore (2013)
Same-sex marriages are not legally recognised in India nor are same-sex couples offered
limited rights such as a civil union or a domestic partnership. In 2011, the court granted

14
"A new UCC for a new India? Progressive draft UCC allows for same sex marriages - Catchnews".
Catchnews. Retrieved 2017-10-12.

9
 legal recognition to a single same-sex marriage, involving two women.15 After marrying,
the couple began to receive threats from friends and relatives in their village.
Their lawyer said the court had served notice on 14 of Veena's relatives and villagers who
had threatened them with "dire consequences". Haryana has been the centre of
widespread protests by villagers who believe their village councils or khaps should be
allowed to impose their own punishments on those who disobey their rulings or break
local traditions – mainly honour killings of those who marry within their own gotra or
sub-caste, regarded in the state as akin to incest. Deputy Commissioner of Police Dr.
Abhe Singh told The Daily Telegraph: "The couple has been shifted to a safe house and
we have provided adequate security to them on the court orders. The security is provided
on the basis of threat perception and in this case the couple feared that their families
might be against the relationship."16 The couple eventually won family approval.17

b) UK:
Same-sex marriage is recognised and performed in parts of the United Kingdom,
England, Scotland, and Wales. Same-sex marriage is not performed or recognised in
Northern Ireland. Marriage is a devolved issue in parts of the United Kingdom, and the
status of same-sex marriage is different in England and Wales, Scotland and Northern
Ireland.
Legislation to allow same-sex marriage in England and Wales was passed by the
Parliament of the United Kingdom in July 2013 and came into force on 13 March 2014,
and the first same-sex marriages took place on 29 March 2014.
Legislation to allow same-sex marriage in Scotland was passed by the Scottish Parliament
in February 2014 and took effect on 16 December 2014. The first same-sex marriage
ceremonies occurred on 16 December 2014 for same-sex couples previously in civil
partnerships. The first same-sex marriage ceremonies for couples not in a civil
partnership occurred on 31 December 2014.
Same-sex marriage is not performed or recognised in Northern Ireland. Prior to the March
2017 elections, First Minister of Northern Ireland Arlene Foster stated that the
Democratic Unionist Party would continue to use a petition of concern to block any bill

15
"In a first, Gurgaon court recognizes lesbian marriage - Times of India". The Times of India. Retrieved 2017-
01-31.
16
"India's first married lesbian couple given 24-hour protection", The Telegraph
17
"Lesbian couple's parents accept their relationship - The Times of India". The Times Of India. 17 August
2011.

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 which would legislate to allow same-sex marriage. Same-sex marriages from other
jurisdictions are treated as civil partnerships. Of the fourteen British Overseas Territories,
same-sex marriage has been recognised and performed in Akrotiri and Dhekelia and the
British Indian Ocean Territory (for UK military personnel) since 3 June 2014, the Pitcairn
Islands since 14 May 2015, the British Antarctic Territory since 13 October 2016,
Gibraltar since 15 December 2016, Ascension Island since 1 January 2017, the Falkland
Islands since 29 April 2017, Bermuda since 5 May 2017, and Tristan da Cunha since 4
August 2017. Of the three Crown dependencies, same-sex marriage has been recognised
and performed in the Isle of Man since 22 July 2016 and in Guernsey since 2 May 2017.

c) USA:
Same-Sex Marriage is legal in all states, Washington, D.C., U.S. territories except American
Samoa, but not on all Native American tribal lands. Same-sex marriage has been legal since
June 26, 2015, when the United States Supreme Court ruled in Obergefell v. Hodges18 that
state-level bans on same-sex marriage are unconstitutional. The court ruled that the denial of
marriage licenses to same-sex couples and the refusal to recognize those marriages performed
in other jurisdictions violates the Due Process and the Equal Protection clauses of the
Fourteenth Amendment of the United States Constitution. The ruling overturned a 1972
precedent, Baker v. Nelson. Just prior to the Supreme Court's ruling in 2015, same-sex
marriage was legal in many but not all U.S. jurisdictions.
While civil rights campaigning took place from the 1970s, the issue became prominent from
around 1993, when the Hawaii Supreme Court ruled in Baehr v. Lewin that the prohibition
was unconstitutional. The ruling led to federal actions and actions by several states, to restrict
marriage to male-female couples, in particular the Defense of Marriage Act (DOMA). During
the period of 2003 to 2015, various lower court decisions, state legislation, and popular
referendums already legalized same-sex marriage to some degree in thirty-eight out of fifty
U.S. states, in the U.S. territory of Guam, and in the District of Columbia. In 2013, the
Supreme Court overturned a key provision of DOMA, declaring part of it unconstitutional
and in breach of the Fifth Amendment in United States v. Windsor because it "single[d] out a
class of persons" for discrimination, by refusing to treat their marriages equally under federal
law when state law had created them equally valid. The ruling led to the Federal
Government's recognition of same-sex marriage, with federal benefits for married couples

18
No. 14–556. Argued April 28, 2015—Decided June 26, 2015

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connected to either the state of residence or the state in which the marriage was solemnized.
However, the ruling focused on the provision of DOMA responsible for the Federal
Government refusing to acknowledge state sanctioned same-sex marriages, leaving the
question of state marriage laws itself to the individual states. The Supreme Court addressed
that question two years later in 2015, ruling, in Obergefell, that same-sex married couples
were to be constitutionally accorded the same recognition as opposite-sex couples at
state/territory levels, as well as at federal level.
By the time that same-sex marriage became legal nationally, public opinion on the subject
reached almost 60% approval levels according to polls by The Wall Street Journal, the
Human Rights Campaign, and CNN, having crossed the 50% in 2011 and not going below
that mark since.19

d) PAKISTAN
Capital punishment and life imprisonment for homosexual acts exist in many countries
that have legislation which is influenced by or based on sharia. Sexual acts between
persons of the same gender are illegal in Pakistan. The legal situation is clear: any sexual
activity outside the context of heterosexual marriage is punishable under both secular and
religious law. The legislation comprises sharia and secular laws which can be used
separately or in combination against the accused. In secular law, the legal prohibition is in
paragraph 377 of the Penal Code (Penal Code 1860). This provision, of which similar
variants can be found in the penal codes of several former British colonies, does not
specifically refer to homosexuality, but deals with actions that go against «the natural
order». The full provision reads:
Whoever voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment for life, or with imprisonment of
either description for a term which shall not be less than two years nor more than ten
years, and shall also be liable to fine (Penal Code 1860).
The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) also
considers the so-called Hudood legislation to be relevant to homosexual acts (ILGA, n.d.). In
the late 1970s, provisions were introduced to bring the penal code in Pakistan into conformity
with sharia. The Offence of Zina (Enforcement Of Hudood) Ordinance from 1979 specifies

19
Janet Hook. "Support for Gay Marriage Hits All-Time High — WSJ/NBC News Poll". The Wall Street
Journal. Retrieved September 2, 2015.

12
penalties for various acts described as crimes against God according to the Koran and Islamic
legal tradition. According to the Koran, the so-called zina crimes, which include extramarital
sexual relations, fall under this category of crimes. The Offence of Zina (Enforcement of
Hudood) Ordinance defines zina as such: «A man and a woman are said to commit ‘Zina’ if
they wilfully have sexual intercourse without being validly married to each other» (Zina
Hudood Ordinance 1979, § 4). The maximum punishment for zina is stoning to death.
Paragraph 12 mentions «unnatural lust» in connection with coercion and has the death
penalty as the strictest punishment.
Some sources point to a type of harassment against men who have sex with men which
Landinfo recognises from other countries in the region, for example Nepal and Sri Lanka. As
with Pakistan, these countries have an almost equivalent legislation against «unnatural sexual
intercourse» which does not extend to men who engage in voluntary sexual relations with
other men (MSM). In all three countries, private space and privacy is limited and it is
therefore challenging to keep taboo relationships hidden. Generally the weakest socio-
economic groups will be the most exposed and vulnerable, such as prostitutes. They will not
be arrested, investigated or prosecuted, but risk being subjected to various forms of
harassment, coercion and extortion by law enforcement agents - most often the local police.
Hasan Mujtaba gives an example of how corruption, violence and intimidation affect weak
MSM. The prostitute Farukh was regularly raped by policemen, under threat of prosecution
under the law and disclosure of his sexual preferences to his family. He then had to pay
bribes to the police to be able to operate, but he was also involved in extortion crimes along
with the police (Mujtaba 1997).
There is also information about harassment from private individuals, such as restaurant and
hotel owners and pimps. It is probable that reporting such incidences would lead nowhere,
and the police have no will to follow up on such harassment.
Therefore, as Landinfo understands the situation, MSM do not have problems related to
criminal prosecution. Those who are most visible in public, however, risk being harassed by
the police, a harassment that seems to be both economically and sexually motivated. The
harassment probably primarily affects persons of low socio-economic background and hijra.
The ban works as a basis for threats; threats which lead to extortion.
Islam and Islamic thought affects all aspects of society in Pakistan and paragraph 227(1) in
the Constitution formally sets out Islam’s central position (Constitution of Pakistan 2010):
All existing laws shall be brought in conformity with the injunctions of Islam as laid down in
the Holy Quran and Sunna ... and no law shall be enacted which is repugnant to such
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injunctions. The broad consensus is that sex between persons of the same gender violates
Islamic law and many probably equate homosexual acts with zina. As Landinfo perceives the
situation, there are differing opinions on both the burden of proof and the level of
punishment. Landinfo is not aware of research on the legal perception in Pakistan, but it is
probably on a very strict continuum; stoning to death, burning to death, throwing off cliffs,
life imprisonment, etc. The Malaysian lawyer Shafi’i Abdul Azeez Bello is categorical in his
assessment of the climate of opinion in Pakistan:
LGBT (Lesbian, Gay, Bisexual and Transgender People) rights are not supported by any
political or humanitarian party that does not value selfdestruction. Being a lesbian, gay,
bisexual or transsexual person is considered a taboo vice in parts of society of Pakistan and
gay rights are close to non-existent.
Public awareness-
It is established above that persons of the same gender can live together, but if they have a
homosexual relationship and it becomes known, they risk serious abuse, according to both
sources in Islamabad. Hina Jilani categorically established that it is not possible «to come out
of the closet» in Pakistan, it would expose the person to risk of serious violence from private
parties.
There is no empirical data available, so Jilani’s viewpoint is regarded as a qualified
assessment. Landinfo believes that there is no reason to question the assessment; the lack of
empirical data is probably a confirmation that it is correct.
Landinfo also believes that it is reasonable to assume that the strongest reactions will come
from the immediate family, because a family member who is characterised as homosexual
would clearly weaken the family group’s moral status and honour. As an extension of
homosexual acts having an element of zina, one cannot ignore that publicly known
homosexuality within a traditional and religiously conservative environment would represent
a risk of serious reactions. Risk of reactions and the seriousness of the reactions would
probably vary along several dimensions, including geography, religious/cultural climate,
network, political influence/power, economics and education, etc.
It is furthermore possible that other parties would react, primarily conservative religious
environments which could take action and represent a threat of serious abuse.

e) NEW ZEALAND

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 The New Zealand Human Rights Commission formally endorses marriage equality and a
non-discriminatory approach to adoption that gives primacy to the best interests of the
child. The Yogyakarta Principles were developed by a distinguished group of human
rights experts in November 2006. They address a broad range of international human
rights standards and their application to issues of sexual orientation and gender identity.
Human Rights in New Zealand 2010 identified that “remaining areas where heterosexual
people have different legal rights from sexual and gender minorities relate primarily to
family life”. It concluded that formal legal equality around the rights to found and form a
family requires both marriage equality and adoption equality. Therefore the latter sections
of this paper summarise relevant case law and current members’ bills that would address
the continued exclusion of same-sex couples from joint adoption.
Case Law
In the 1998 Court of Appeal case Quilter v Attorney-General20 three couples in long-term
lesbian relationships appealed a decision by the High Court affirming that the Marriage
Act 1955 did not allow for marriages between persons of the same sex. The case arose
when the Registrar refused to accept their notices of intended marriage under section 23
of the Marriage Act, and then refused to issue them licences under section 24 on the basis
that the Act did not provide for marriage between persons of the same sex.
In Quilter the Court of Appeal held that it is matter for Parliament to decide whether
marriage should be available to any couple other than a man or a woman.
Subsequently, the approach to interpreting discrimination has changed as a result of the
recent Ministry of Health v Peter Atkinson decision by the full bench of the Court of
Appeal. However this does not alter any of the substantive issues raised in Quilter.
Atkinson has affirmed points made by Tipping J in Quilter v Attorney-General and
reiterated at the Supreme Court in Air New Zealand v McAlister. Namely, while not all
difference is discriminatory, the question of whether there is discrimination is distinct
from whether it is justified.
The Marriage (Gender Clarification) Amendment Bill 2005
The Marriage (Gender Clarification) Amendment Bill was introduced in 2005 as a
members’ Bill. It sought to add a provision to the Marriage Act 1955, stating that
marriage means a union between a man and a woman and not between two persons of the
same sex. The bill also sought to amend the New Zealand Bill of Rights Act 1990 to

20
[1998] 1 NZLR 523

15
 specify that measures taken in good faith for the purposes of assisting or advancing
marriage do not constitute discrimination. The bill was defeated at its first reading by 73
votes to 47.
Human Rights in NZ 2010
The sexual and gender minorities’ chapter in the Commission’s December 2010 report
noted: Anything less than full legal recognition of same-sex relationships is of particular
concern for vulnerable couples, including older people in residential care and/or when
power of attorney is being exercised on their behalf. In addition, the chapter highlighted
the impact that the restriction of marriage to being between ‘a man and a woman’ has on
trans or intersex people because their eligibility to marry, or to stay married, alters if their
sex changes. This is further complicated as judicial decisions about the threshold for
changing sex details on a birth certificate are diverging from older 1995 case law on the
threshold for being recognised as male or female under the Marriage Act. Nor is it clear if
someone whose sex is recorded as indeterminate on a birth certificate is able to marry
either a man or a woman.
Conclusion:

16
 BIBILOGRAPHY

Websites referred
 https://www.usatoday.com/story/news/2017/07/07/same-sex-marriage-countries-
world/453014001
 http://www.newsweek.com/same-sex-marriage-australia-711799
 http://www.gallup.com/poll/162398/sex-marriage-support-solidifies-above.aspx
 https://en.wikipedia.org/wiki/Same-sex_marriage#cite_note-27
 https://en.wikipedia.org/wiki/Status_of_same-sex_marriage
 https://en.wikipedia.org/wiki/LGBT_rights_in_India#cite_note-Times_of_India-32
 https://en.wikipedia.org/wiki/Recognition_of_same-sex_unions_in_India#cite_note-
Catch_News-2
 https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_Kingdom
 https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States
 https://www.hrc.co.nz/files/8914/2357/1749/Marriage-equality.pdf
 https://landinfo.no/asset/2942/1/2942_1.pdf

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