In practice there is far more going on here than the changing of our Constitution writes Alison O’Connor
WHEN I hear the ‘Yes’ side say the definition of marriage will not be changed in the upcoming referendum it strikes me as daft. It’s a bit like saying that you’ve had the builders in and doubled the size of your house, but it is in essence the same structure.
Technically, yes, I see how the argument is correct in terms of marriage itself remaining unchanged, and if the referendum passes what it means is more combinations of couples can avail of that unchanged institution.
But in practice there is far more going on here than the changing of our Constitution, which is not to underplay the significance of that move in itself.
Again it is perfectly technically correct to state that this referendum has nothing to do with same sex couples being allowed to adopt or to do with surrogacy, which will, we are told, be legislated for in the near future.
The adoption issue was dealt with under the Children and Family Relationships Bill and at the time was described by Taoiseach Enda Kenny as the most important family legislation in the history of the State.
At present in Ireland surrogacy is legal. If the referendum passes that will not change, although this is something the Government has pledged it will legislate on. In theory it could ban it outright, although this is highly unlikely. It is also a fact that the vast majority of those who avail of IVF or assisted human reproduction are straight people.
Those are the legalities, and the promised legislation, which we are being told are separate from the referendum. But on a practical level the referendum has everything to do with these things and when the ‘Yes’ side argue differently I believe it weakens their case. This referendum, if passed, together with the legislation referred to previously, both mark a seismic social shift in our society. They would involve social change that we would not have dreamt of even 15 years ago.
The Archbishop of Dublin, Diarmuid Martin, gave an interesting and thoughtful speech on the referendum on Wednesday. He goes some way to making my point very well, although he makes clear at the start of the speech that he will be voting ‘No’, whereas it is my intention to vote ‘Yes’.
He asks what is the current understanding of the male/female relationship in the Irish Constitution and would this be changed in the Referendum? There is no formal definition of marriage in the Constitution, but the consistent legal interpretation is that it refers to a marriage between a man and a woman, and that this recognition is fundamental and goes beyond any particular understanding of marriage that may have existed at the time of writing of the Constitution.
There are legal scholars he adds, who maintain there is no need for a referendum and that the legislature could change a definition of marriage. The government has clearly thought otherwise in stressing that what is proposed requires a referendum. “For the Constitution, a referendum is not a public opinion survey, but is required only when the Constitution is being changed and what we are being asked to change is an article of the Constitution on marriage. It is a question of changing.”
Is the proposal, the Archbishop asks, simply to extend accessibility to marriage, or is it a real change in the definition of marriage which has significance for all citizens?
He is absolutely right to say that you cannot take one article of the Constitution in isolation. He goes on to say: “Marriage is not simply about a wedding ceremony or about two people being in love with each other. Marriage, in the Constitution, is linked with the family and with a concept of family and to the mutuality of man and women which is the fundamental foundation for the family as it exists in the Constitution today. Such fundamental questions about the good of society are clearly the concern of all.”
Both sides in the referendum debate, he added, really recognise, yet to varying degree, that what is involved in the referendum is about the values which a changing society wishes to embrace.
This gets to the nub of the manner in which the majority on the ‘Yes’ side have been attempting to present the my 22 vote somehow in isolation of the Children and Family Relationships Bill and the legislating on surrogacy.
It is the same Government that is pushing us in a particular social direction and it is not some sort of coincidence that we’ve had legislation covering adoption, and then a referendum on same sex marriage and ultimately will have legislation on surrogacy.
This is all part of the same macro agenda to introduce equality to our society. Why not acknowledge that and call a spade a spade? Why not shout it from the rooftops that it will be marriage, children, mortgages, sometimes happy families and sometimes unhappy families? This would take what sounds to me like a hollowness or a reticence that is in the debate which drags down the ‘Yes’ side.
I can understand the temptation to separate out the referendum from the other controversial issues which involve children. There is the valid concern that rather than think of it purely as a matter of equality the ‘No’ side, or those who are unsure, will instead concentrate on the concerns of how being raised in a same sex relationship will adversely affect a child, and that will trump any positive feelings that there may be on equality.
But again to my mind this approach merely increases the concerns of the waverers and gives further ammunition to the ‘No’ side who recognise that the ‘Yes’ side feel vulnerable on this.
There is so much at stake with this referendum. We saw the disappointment that there was in Scotland when it voted to stay in the United Kingdom, and that was “just” a national issue rather than one which is so personal to so many LGBT people in Ireland and their families. However bad it is to live in a country where you are passively denied the same full marriage rights as hetrosexuals, how horrible it would be if your fellow countrymen and women actively came out to vote so that you remained a second class citizen.
Indeed almost as bad would be the idea of the referendum being lost because of a high number of people not coming out to vote on the day, as has been the pattern with our referendum votes.
As we head into the last fortnight of campaigning, the debate is going to become even more intense.
I can’t help but think that a more “real” approach from the ‘Yes’ side would ultimately be to their benefit.
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