By Max Harris
Editor’s Note: Last week, Max Harris examined the religious exemptions of New Zealand’s recently passed Marriage (Definition of Marriage) Amendment Act 2013. Today, he takes a closer look at the issues that the Act raises about public interest litigation.
As noted last week, on April 17, the New Zealand Parliament passed the Marriage (Definition of Marriage) Amendment Act 2013, following a powerful nationwide campaign. From 19 August this year, gay, bisexual, lesbian, transsexual and intersex marriages will be legal. New Zealand’s legalization of same-sex marriages makes it the first country in Asia-Pacific to make the change and the 13th country in the world to do so; the new Act has therefore gained significant attention as other countries consider the issue (like France).
This was not the first time marriage equality had been raised as an issue in the New Zealand legal context. In fact, in Quilter v Attorney-General  1 NZLR 523, the New Zealand Court of Appeal considered one of the key issues underlying the legislation: whether marriage that excludes same-sex couples is discriminatory. The New Zealand Court of Appeal had ruled, in an application brought by three lesbian couples, that the Marriage Act 1955 was not discriminatory (upholding the High Court finding). Three judges found that the Act was not discriminatory per s 19 of the New Zealand Bill of Rights Act; one judge found that the Act was prima facie discriminatory but that this was justified under s 5 of the Bill of Rights (which allows reasonable limits on rights); and only one concluded that the Act represented unjustified discrimination, stating:
In this country, as in many societies throughout the world, marriage is the single most significant communal ceremony of belonging. … 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.
However, the dissenting judge, Thomas J, noted that it was not possible to reinterpret the Marriage Act (using s 6 of the Bill of Rights), claiming that the Act was too clear to justify such reinterpretation.
The case was cited during the marriage equality campaign in New Zealand, and the question arises: to what extend did it accelerate the legislative change in New Zealand? The question is an instance of a more general inquiry familiar to scholars of public interest law and socio-legal academics: namely, does litigation, even if unsuccessful, make a difference to social change, by bringing issues to public attention and airing reasons for and against a particular issue? On the surface, it appears that Quilter played only a small role in achieving marriage equality. The Chief Justice of New Zealand, Dame Sian Elias, has suggested in past speeches that Quilter may have contributed to the public debate that made the passage of civil union legislation possible in 2004 – and this seems correct. It may be that Quilter helped make civil unions possible, but was too distant a memory (it was, after all, over 15 years ago) to make any real difference to the marriage equality legislation passed this year.
On the other hand, Quilter did seem to plant some of the arguments in the public consciousness (though there is room for debate, of course, over how far the words of a legal judgment can be said to have seeped into that public consciousness), and it must have contributed in some way towards further raising the profile of the issue of marriage equality.
Such offhand speculation only gets us so far. What is needed (here and in other contexts) is a careful, empirical socio-legal analysis of whether and how the case made a difference to the campaign. That analysis would prove valuable both to lawyers and those interested in the general issue of how social change happens.
Max is a BCL candidate at Balliol College, University of Oxford and is a former co-chair of the JustSpeak Steering Group.