Deborah Coddington: Only the right to marriage will give gays full equality

Amid the furore over the Harawira whanau and inter-racial marriage, here's a challenge for Attorney-General Chris Finlayson if he's genuinely concerned about equal rights in New Zealand: it's time Parliament revisited the legal right for gay men and lesbians to marry.

I write from San Francisco, having arrived on August 4, a day of celebration for same-sex couples in California.

For on that day, Chief District Court Judge Vaughn Walker's decision overturning Proposition 8 was released, meaning marriage licences must be issued to all who legally comply and apply. The gays took on Schwarzenegger and won.

Just a few decades ago in America, almost exactly the same arguments were used against inter-racial marriage - such discrimination, it was said, protected the family.

This was not about gay rights, it was about equal rights, and Walker's written judgment is deceptively simple.

But no sooner had the judge's signature dried beneath the solemn words "It is so ordered" than the personal threats and attacks began against him. He is gay, some said, as if it were a case of leprosy; secretly gay, and therefore should have "recused" himself (that Americanism fatuously adopted by Kiwi reporters covering our Justice Wilson case).

If that is so, should Ruth Bader Ginsburg never sit on abortion cases before the Supreme Court because she's a woman? Should all judges be required to out themselves because the screamingly bigoted demand the right to know their sexual orientation?

David Boies, one of the lead members of the team which successfully challenged Proposition 8, delivered the rousing keynote speech for the American Bar Association's opening assembly (why I'm here).

Boies - a dyslexic who used no speech notes - said the ruling, expected to be appealed and eventually end up in the US Supreme Court, was "an important step in affirming the rights of gays and lesbians", who he described as perhaps "the last group still subject to state-sanctioned discrimination" in the United States.

"We have seen legal barriers to state-sponsored discrimination eliminated one at a time, but we still have a ways to go," said Boies. The court's action "took an important step toward eliminating that state-sanctioned discrimination against our gay and lesbian citizens".

Plaintiffs had to prove Proposition 8 violated the American Constitution, under the 14th Amendment: No state shall deprive any person of life, liberty or property without due process of law.

The freedom to marry a person of one's choice, the plaintiffs argued, is a fundamental right, and the 14th Amendment protects that right. Walker ruled gays and lesbians were not arguing for a new right in wanting to marry.

Witnesses testified they just wanted the same rights as opposite-sex couples, that is, to be able to marry, and call each other husband and wife. Marriage, the judge cited from 1965 case law, is essential to the orderly pursuit of happiness by free men.

It is sad, but not surprising, that Proposition 8, a voter-enacted amendment to the Californian Constitution, was pushed hard by the religious right under the banner ProtectMarriage. They rolled out some hateful misinformation about same-sex relationships, but Walker reminded them of their roles.

Marriage had always been a civil matter, he said. Religious leaders are permitted to solemnise marriage but not to determine who may enter or leave the institution. Whom they do or do not recognise has no effect on the relationship under state law.

Ultimately, he concluded Proposition 8 was without reason, based on private moral views that held same sex marriageswere inferior to opposite-sex marriages and therefore discriminatory.

Walker ruled: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage licence. Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians."

New Zealand's legislation denying marriage to gays is based on moral disapproval.

Imagine if our law forbade marriage between Maori and Pakeha, tossing them instead a compromise - civil unions? Finlayson, who prides himself on his Treaty work, would swiftly change the law, with overwhelming Kiwi support.

So why do we continue to hold the same moral discrimination against gays?