Caroline O’Doherty separates the fact from the fiction ahead of next Friday’s marriage equality referendum
Q. Why are we having a referendum?
A. It’s a progression from a series of major legislative changes promoting and protecting equality over the past 15-20 years, but it could probably be dated back to the decriminalisation of homosexuality in 1993. Changes in society have influenced the law and vice versa. Marriage equality has been one of the last outstanding issues and it’s been in the Programme for Government since 2011.
Q. What are we being asked to approve or reject?
A. Article 41 of the Constitution says: “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.” We’re being asked if we want to add on the statement: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”
Q. But if the Constitution as it stands doesn’t specifically state that marriage is between a man and a woman, why do we need to specifically state that there should be no distinction as to sex?
A. Because all legal opinion and court judgments so far have found that marriage as referenced in the Constitution was intended to mean a union between a man and a woman only. Given that the Constitution was written in 1937, it is widely accepted that the idea of same-sex unions was not envisaged.
Q. Hasn’t the Civil Partnership Act dealt with the question of same-sex unions?
A. It was a landmark piece of legislation, but the difference between a piece of legislation and the Constitution is that the former can be changed by the legislators of the day, while the Constitution can only be changed by a referendum of the people. In theory, a government could decide at any time to rescind the act.
Q. Is that the only concern? It seems an unnecessary worry, given that it’s almost impossible to imagine any government would revoke the act.
A. There’s more to it than that. Article 41 commits the State to guarding “with special care” the institution of marriage. So even though civil partnership didn’t exist in 1937, it could be argued the Constitution ranks marriage higher than civil partnership. It is also more difficult to dissolve a marriage than a civil partnership and there’s the mid-way option of judicial separation in marriage that doesn’t exist for civil partners, so it seems clear that marriage is treated as a more serious commitment than civil partnership. There are also other practical differences. A married person may be exempt from testifying against their spouse in court, while no such possible exclusion exists for civil partners. The protected status of the family home is also treated differently in divorce proceedings than in the dissolution of a civil partnership .
Q. How will the family be affected by the referendum? The Yes campaign says it has nothing to do with children but the No camp says it is all about children.
A. There is a lot of argument — legal and emotional — over the potential implications for children and for adoption and surrogacy if the referendum is passed. A yes vote would make no specific immediate change to the status of children. The Children and Family Relationships Act, passed last month, gives greater protection to children being raised by same-sex couples and greater legal recognition of their relationship with the non-biological parent, so that matter has been dealt with by law, not referendum. Similarly with adoption, the act introduced the possibility of adoption by same-sex couples. Up to then, a gay person could apply to adopt, but only as a single person. The question of which couple would get to adopt a child if there was competition between an opposite-sex and a same-sex one would be decided on the suitability of the couples and the best interests of the child. If a child had been reared for a time by opposite-sex parents, it might be possible to favour the prospective opposite-sex adoptive parents over the same-sex couple. That wouldn’t be discriminatory against the couple. It would be a judgement on what would best suit the child. On the issue of surrogacy, we have no law at all so there can be no preference given to married couples over unmarried couples, civil partners, or single people of either gender. If law is to be drawn up to govern assisted human reproduction — as successive governments have been promising for more than a decade — it will have to comply with whatever is in the Constitution at that time. So if any future law was to limit surrogacy to married couples and if marriage included same-sex unions, then it seems obvious it would have to allow surrogacy for both same-sex and opposite-sex couples. The chairman of the Referendum Commission has said it would be theoretically possible to draw up law that gave preference to opposite sex couples if evidence could be produced that this was in the best interests of any child born of surrogacy but he also said it was hard to see such evidence being produced and surviving a legal challenge. There is still the issue of perception. If Article 41 affords “special care” to marriage “on which the Family is founded”, then it could be argued the State thinks more of the children in a marriage. However, Article 42A of the Constitution, as inserted after the Children’s Referendum, says: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.” The key phrase there is “all children” — without bias as to the composition of their family.
Q. Put that in a nutshell.
A. It’s a personal, moral, and, for some, a religious question that depends on law that hasn’t yet been drafted. But if you think passing the referendum is likely to lead to, or influence, future law providing for same-sex couples to parent with the same protections and responsibilities as opposite-sex couples and you don’t agree with that, then vote no. If you feel the current situation leaves a question mark over the value of same-sex families and you don’t agree with that, then vote yes.
Q. If we remove children entirely from the nutshell?
A. Then the question is whether you think marriage as envisaged in 1937 is the only kind of marriage that deserves Constitutional protection. If so, vote no. If you think the 1937 meaning is no longer realistic, vote yes.
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