Five Years After Society's Destruction

The first civil unions occurred in 2005. Five years later, as we're overtaken on gay marriage rights by Argentina, Mexico, and other countries: did we fight the right battle?

Gay New Zealanders have now had the right to earn state recognition of our rainbow-coloured relationships for a little more than five years. In that time, a lot of the predictions made before civil union legislation have been proved wrong.

Columnist Garth George was wrong -- as he has been on most things in the modern age -- when he said that introducing civil unions would be destructive of "the very foundations of society as we know it". Society's foundations seem hardly to have been affected.

Politician Peter Dunne was wrong to worry that marriage would be weakened because a straight couple could "trade marriage down to a civil union". Other than Helen Clark musing that she would have quite liked to have had a civil union, very few others in ‘opposite marriages' have expressed any desire to downgrade.

And while I am not sure what Destiny Bishop Brian Tamaki meant when he said that the Labour Party had "ordered [sodomy into] law so they could get your child and your grandchild", I'm fairly confident that this has not come to pass.

But some supporters of civil unions have been proved wrong as well: the well-meaning advocates for gay rights who told us that civil unions were a more 'pragmatic' option than gay marriage. That we needed to push for rights quickly, while we still had a 'gay-friendly government'. And that after civil unions were made into law, it would become easier to fight for full marriage.

I'm proud to come from a country that, even among developed nations, is less discriminatory to gay couples than many. But I believe that fighting for the compromise of civil unions instead of trying to open up marriage to gay couples was the wrong option.

Before the time of the Civil Union Act (which saw the first civil unions occur in late-April 2005), there were just nine New Zealand laws that recognised same-sex relationships. The first had been the Electricity Act of 1992. This ground-breaking legislation provided gay couples with the right to fix each other's household appliances.

As of 2004, around 100 laws excluded same-sex couples. At the time, if my partner suffered from an accident or illness, I did not have the right to make decisions about his care. (Fortunately, I was able to get the toaster fixed. Thanks, Electricity Act of 1992!) Gay couples missed out on financial benefits that came from being in an officially recognised heterosexual relationship, including superannuation and death benefits.

The Civil Union Act created a new type of legal relationship called a "civil union", without touching the Marriage Act. That's all that it did.

A second piece of legislation - the Relationships (Statutory References) Act - removed discriminatory provisions from all sorts of statutes and regulations so that immigration, next-of-kin status, social welfare, and matrimonial property rights, etc, would be the same, no matter whether you were in a marriage, a civil union or a de facto relationship. (This left adoption as the one remaining area, as Andrew Geddis has written about, where discrimination was deemed acceptable).

It was the Civil Union Act, not the Relationships (Statutory References) Act that got everyone excited. Well, nearly everyone. A small number of people, myself included, argued that we'd actually rather quite like to have the right to get married.

The Civil Union Act's godfather was Labour MP Tim Barnett, who argued that fighting for civil unions and not marriage was a "pragmatic" move. I always wondered what the outcome would have been if past legislators around the world had decided that, instead of eliminating laws that were clearly discriminatory, they would settle for "pragmatic" gestures.

The basic argument back in 2004 was that the New Zealand populace couldn't stomach the idea of opening up marriage to homosexuals, so we should settle for civil unions instead.

What this argument failed to take into consideration was the inevitability that social conservatives would argue - with great success - that civil unions were just ‘gay marriage in drag'.

So we got a gay marriage battle without getting gay marriage.

The fight in the media and in parliament turned uncivil and then quite nasty, with MPs eventually accusing each other of homophobia. One conservative MP compared civil unions with state recognition of bestiality. Luminaries like Garth George predicted the imminent destruction of the very fabric of society. Bishop Tamaki organised monochrome-suited rallies, and the then-Auckland Mayor Dick Hubbard fretted about the effect on children of having homosexual parents. Nice one, Dick.

The legislation's passage was as divisive as actual fights over gay marriage have been in other countries - in some respects, more so.

We'll never know what might have happened if Labour had opted for principle over pragmatism. Would it have been impossible to get a majority of MPs -- voting with their conscience -- to end discrimination in the Marriage Act?

Would Labour really have lost more political capital fighting for marriage than it did by pushing for civil unions, and caused a larger backlash later against 'social engineering'?

It's possible that I'm wrong and that social conservatives held back during their fight against civil unions, and a battle for gay marriage would have been considerably worse. But I don't think that is true.

What we do know is that since 2005, and quite understandably, no mainstream politician has dared suggest that gays might want more rights. And it's hard to foresee any politician pushing for that ‘next step' on gay marriage.

In parliament, the few actual liberal members of ACT (Deborah Coddington opposed the Civil Union Bill at first because it did not offer full marriage rights) have apparently left. National and the Maori Party have no voice on gay rights. The Green Party deserves kudos for being the only party with a policy of "supporting the extension of all legal partnership arrangements and rights to same-sex couples".

In Labour, Barnett has quit parliament. The main recent achievement of Labour's parliamentary Rainbow Caucus (other than Chris Carter's singlehanded battle to fight homophobia in the media) appears to be donning pink shirts to oppose bullying.

That is a really worthy initiative -- like the current 'It Gets Better' campaign. But in my experience growing up, one thing that might also have helped was having a template of a successful family model that I could aspire to. I believe opening up marriage to gay couples would have sent a more positive message than creating the ersatz alternative of civil unions.

In the five years since civil unions became law in New Zealand, full gay marriage has been legally recognized in Mexico, Sweden, Belgium, Spain, Canada, Portugal, Iceland, Netherlands, Norway, South Africa, some US states, and Argentina.

Civil unions were never going to destroy society as we know it, except in Garth George's feverish imagination. The passage of the Relationships (Statutory References) Act and the Civil Union Act was an important step in reducing discrimination. It was great to see so many well-meaning people fight for those law changes.

But five years later, I still believe that it might have been the wrong battle to fight.