UPDATE 13/3/13: Finlayson has voted against marriage equality at the bill’s second reading, which passed 77 votes to 44.

 

New Zealand’s Attorney-General Chris Finlayson claimed a few weeks back that he hadn’t given “a moment’s thought” to how he would vote on what a TV3 reporter termed “the gay marriage bill”.

Labour MP Louisa Wall’s Marriage Equality Bill would amend New Zealand’s Marriage Act 1955 to allow same-sex couples to marry.

Subsequently, Finlayson has told media through a spokesperson that he is “yet to make up his mind” and “will make a decision closer to the vote”.

However, it would appear that the memory of New Zealand’s most senior out gay MP (and the only out gay National MP) is faulty.

In September 2005, he spent at least ten minutes thinking about the idea, because I interviewed him for GayNZ.com not long after he was elected to Parliament.  National were in opposition then, and the divisive Don Brash was its leader.  The Civil Union Act had recently been passed, with most National MPs opposing it (including Brash, who supported it initially but changed his mind at the last minute).

The 2005 election was a vicious one, with GLBT communities made into a political football over civil unions in two ways: one through the dog-whistle politics of Brash, who talked of “mainstream New Zealand” in beige tones; and secondly through religious sect the Exclusive Brethren, who distributed explicitly anti-gay literature, engaged in push-polling, and were later revealed to have given funding to National’s 2005 election campaign.

Finlayson was not an MP at the time civil unions were being voted on, but he had some very definite ideas on marriage and relationship recognition for straight and gay couples at the time of our interview in 2005.

Let’s look at the transcript:

*

CB: I’d like ask you about National’s divisive campaigning this year, and the fluctuating definitions of “mainstream New Zealand”. What’s your take on that?

CF: We’re all mainstream New Zealand. I don’t think it’s been divisive at all. If anyone would be sensitised to divisiveness along sexuality lines, it would be me, I would have thought, and I haven’t found it divisive at all.

CB: So gays and lesbians would definitely be part of mainstream New Zealand?

CF: Of course they are.

CB: Do you think moral right voters would have interpreted that mainstream to not include GLBT and voted National as a result?

CF: I have difficulty thinking what a lot of people on the extreme moral right actually think. I had members of the Graham Capill [Christian Heritage] party attacking me, then I found out that within their own ranks there was some division because they’d heard about my stance on abortion, which is conservative. They thought they may have got the wrong end of the stick. So I have difficulty fathoming what a lot of those people think, so it’d be best to ask them direct.

CB: You don’t wonder what bang they might expect for their buck? Because it seems National has undoubtedly picked up that vote.

CF: I’m not evading the question, the reality is, ask me that question in a month when I’ve had a chance to look at the final result, and what the analysis is. I haven’t really studied those figures to an extent to be able to comment to you in a semi-professional way.

CB: With the big swing to National in the provinces, why do you think this was?

CF: I think it’s almost National over the last three years reconnecting with its traditional roots. We got caned in 1993 after the Richardson budget of ‘91, and we lost seats that had been ours for years, like Invercargill, New Plymouth and seats like that. I think really what’s happened is there has been that final correction so that the countryside and much of provincial New Zealand is now National again. So the challenge for us in cities like Wellington and Christchurch is to build that vote, to reconnect fully with those voters.

CB: Did morality play any part of the swing?

CF: I doubt it myself. I think people overplay the National Party thing about morality. People in the National Party know the difference between private morality and public morality. And they know with private morality it’s nothing to do with the state. So I think the whole thing about moral issues, insofar as New Zealand is concerned – New Zealanders are actually a very fair minded lot.

CB: You would have opposed the Civil Union Bill had you been an MP?

CF: And a lot of gay people would have too.

CB: What were your reasons for that?

CF:  I think it’s anomalous legislation. I think it’s badly drafted, and I think conceptually it’s bad because it tries to engraft itself on marriage. Now I think there are various ways in which one can deal with the need to address the justice issues that are raised by that legislation, I haven’t thought it through, but one practical aspect or one suggestion I think could work – that a lot of people actually believe in – is simply remove state from marriage. You have a system like, for example, France where you register your union and if you want marriage you go to a church or whatever, and if you want some other form of commitment ceremony by all means do it. But I can’t see, for myself, that the state has any legitimate interest in marriage.

CB: In terms of what you outlined, isn’t that what the Civil Union Bill actually is?

CF: No. I don’t think it is. What I’m just talked about is conceptually quite different.

CB: But it is at its core essentially a registration system.

CF: But it’s constructed as marriage by another name.

CB: But there’s two components to marriage though, there’s the ceremonial aspect where you can do what you like. But the state’s involvement is a group of people signing a bit of paper, and a couple of legal declarations that have to be made.

CF: Why would a heterosexual couple choose a civil union over a marriage?

CB: I can’t answer that, but the more interesting question for me is, why shouldn’t a gay or lesbian couple be able to choose marriage?

CF: Well you may find this answer to be horrific, but I regard marriage as a heterosexual institution. Traditional marriage. And I don’t think that in order for legitimacy for homosexual relationships, one needs to look to heterosexual institutions.

CB: But in terms of human rights and discrimination issues…

CF: That’s the other option. That’s where some gay people say the current arrangement is flawed, which is why they would have voted against it, because they would prefer full marriage.

CB: Given that there are a lot of gay people that don’t necessarily want marriage, but do recognise the current law is discriminatory and other people would want it, would you be in favour of Marriage Act amendment at some point in the future should that arise?

CF: No, because I think that what I’ve outlined to you is the better way of dealing with it.

CB: So you would go in the other direction – repeal the Marriage Act and replace it with a registration system?

CF: That is my inclination, yes. That’s the best way of dealing with it, I think. For myself, I can’t see why the church has any legitimate interest in marriage. You have to have some things where, you couldn’t allow more than one registration at any one time. You couldn’t allow civil bigamy, civil polygamy, that would be a bit beyond the pale I would think.

CB: What about adoption? Same-sex couples adopting?

CF: I can’t see that adoption is a first tier issue at the moment, because there are no adoptions. You can’t adopt children in this country now. I know a former legal partner of mine, he and his wife couldn’t adopt a child because they kept being told by the welfare department that by reason of their income, social background and education that the birth mother would have difficulties relating to them. And they were a couple that could have adopted children and done a fantastic job with it. So I can’t see that they’re available fullstop.

CB: In principle, though?

CF: I don’t care who adopts children, provided they’re well looked after.

CB: Your definitions of some commonly used right wing terms: political correctness?

CF: Political correctness would be a form of thinking both as to substance and to style that – increasingly style – that dictates the way you are to express yourself.

CB: Social engineering?

CF: There are a group of people, or the government who control the…the government at any one time who think that, rather than the individual being able to make choices for his or herself that these people know best, the state knows best, and the state will direct the way in which people are to go. An example of that would be the smacking legislation. I think provided you make it clear what reasonable force is, you’re never going to stop parents administering physical discipline to their children.

CB: So given that definition, isn’t all legislation a form of social engineering?

CF: I think quite a lot of it does. And I actually do not believe that legislation is the great cure-all for the world’s ills. I think there’s a lot to be said for human compassion, forgiveness, common sense, and particularly given my interest in the law, the common law can regulate a lot, and this desire to use the House of Representatives as some sort of legislative sausage factory which spews out legislation to create nirvana for people is not my idea of what Parliament is, nor is it my idea of what a parliamentarian should be.

CB: Would you acknowledge that those two terms have been used as boogeymen in a sense, because they can be used to mean different things to different people, and they have been often used as code words for attacking the GLBT community, and advances toward civil equality? Things like civil unions?

CF: I wouldn’t have thought that. You think the civil union legislation was? That’s not social engineering.

CB: It’s been cited as an example. You know what I mean by code words? They’ve been very useful in scooping up large amounts of votes. You wouldn’t think civil unions was social engineering?

CF: I wouldn’t have thought that civil unions were an example of social engineering. I see it more as an example of badly drafted, badly thought out legislation. The other option which several of my colleagues have said to me about, on the civil union front, is if the courts had actually developed the concept of a trust to deal with devolution of property and such matters, they didn’t think legislation was needed. I wouldn’t have put them in the category of bigots at all, just they were thinking about ways in which to deal with particular issues.

CB: But with the stance you have on same-sex marriage, do you feel as if you’re denying people a choice that should be available to them because it’s available to heterosexuals?

CF: No I don’t . And this is hypothetical, because the debate is not on the table. We’re talking about adapting a heterosexual institution for same-sex couples. And I think that’s logically misplaced.

CB: But it’s only been a heterosexual institution because same-sex relationships haven’t been recognised. They’ve existed throughout history. Do you think it’s really possible to move things in the direction in which you have outlined?

CF: I honestly don’t know the answer to that. I’d be speculating.

*

And so, indeed, are we.  Left speculating, that is.

The Attorney-General in New Zealand is the government’s primary legal advisor.  Given that even Prime Minister John Key is on record as (provisionally) supporting same-sex marriage, what will Finlayson’s advice be when the time comes?

When initially doorstopped by TV3 and asked how he would vote on “the gay marriage bill” Finlayson said he had been “too busy supporting Treaty grievances”.

I’m no lawyer, but at first blush I’d say Treaty grievances are far more complicated to make a decision on than this.

When Finlayson makes his decisions on Treaty grievances, does he base them on law and justice, or his own personal ideology?  Can the same be said for his forthcoming decision on marriage equality?

Further clues can be found tomorrow, when we revisit another Finlayson speech from 2005 – in which he defended the anti-gay Exclusive Brethren and compared criticism of their covert anti-gay campaigning to the Jewish pogroms of the 19^th century.