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I wish to predicate my contention by stating that I did not vote against the proposal in the marriage referendum: therefore the following matter is not intended to be prejudicial to the advancement of its cause.
However, because of the alignment of marriage with the Family in Article 41.3.1 of the Constitution — legislation arising from the referendum may be in danger of later nullification through legal challenge.
The following interpretations are from the Irish version of Bunreacht Na hÉireann.
Article 41.1.1 states that the family is the basic unit of social order in accordance with nature and that it predates and is superior to positive law.
Here it can be argued that the family could not have arisen naturally through homosexual activity — see A.43 on Marriage. Neither may natural order be altered by law.
Article 41.1.2 declares that the State will preserve the composition of the family. This section of Constitution may be violated by any act based on the proposal as presented in the marriage referendum — because the inclusion of a married homosexual partnership within the new constitutional definition of the Family would alter its composition.
Article 42.1 refers to the importance of the woman within the family. This appears to militate against the validity of two married homosexual males constituting a family.
In this matter the word “teaghlach” — which in the first instance means the family — is interpreted as the home in the English version. If the word “home” was the sole original intention in this instance, then the Irish equivalent “an Baile” or “an Teach Teaghlaigh” should have been used. In any case it was the family (home) which was the likely intention.
Article 43.1 states that because the family is founded on marriage, the State pledges to protect marriage against attack.
If it has already been affirmed that the family has arisen in accordance with nature, and if marriage has been fundamental to its evolution — then that evolution could not have involved homosexual partners.
Thus the understanding of the term ‘Family’ — as currently stated within the constitution — may preclude the validation of homosexual marriage until there is further alteration of Article 41.
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