Reflections on the Bill of Rights after Quilter v. Attorney-General
![handle is hein.journals/newzlndlr1998 and id is 747 raw text is: Reflections on the Bill of Rights
after Quilter v Attorney-General
PAUL RISHWORTH*
Introduction
Quilter v Attorney-General' concerned three lesbian couples who sought a decla-
ration that they ought to have been granted marriage licenses. They claimed
that the refusal of licences amounted to discrimination by reason of their sex
and sexual orientation, contrary to s 19 of the New Zealand Bill of Rights Act
1990. The Registrar of Births, Deaths and Marriages took the position that the
Marriage Act 1955 authorised only male-female unions, so that their real com-
plaint was with the legislation. In response, the appellants argued that the Mar-
riage Act did not actually preclude licences for same-sex couples, especially
when interpreted in light of the Bill of Rights guarantee against discrimination.
But the High Court upheld the Registrar's position,2 and the Court of Appeal
agreed. While the judges differed over whether the traditional concept of mar-
riage amounted to discrimination in terms of the Bill of Rights, they held
unanimously that the Marriage Act 1955 did not permit same-sex marriage and
that the Registrar's refusal was therefore legally justified.'
That result was predictable.4 The legal interest in the case lay in the method
by which the Court reached its result, and particularly whether the judges of
the Court might feel required - or permitted - to express their view on the
ultimate issue: is the concept of marriage assumed by the Marriage Act dis-
criminatory against gay and lesbian persons? While there have been same-sex
marriage cases in other jurisdictions, the position remains that only the merest
handful of judges worldwide have ruled the institution of marriage to be dis-
* Faculty of Law, The University of Auckland. Thanks, with the usual disclaimer, are due to my Law
School colleagues for helpful comments at a staff seminar, and particularly to Mike Taggart, Scott
Optican, Jim Evans and Grant Huscroft.
1 [1998] 1 NZLR 523 (CA).
2 (1996) 3 HRNZ 1.
3 Section 19(1) provides: Everyone has the right to freedom from discrimination on the grounds
of discrimination in the Human Rights Act 1993.
4 See discussion of the High Court hearing at [19961 NZ Law Review 298, 308-309 which antici-
pates many of the points to be made in this article.](ViewImageLocal?handle=hein.journals/newzlndlr1998&div=44&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Reflections on the Bill of Rights after Quilter v. Attorney-General
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most