Ciara Cosgrave | Staff Writer
In 2006 former Minister for Justice Brian Lenihan issued a statement in response to calls for legislation on equal marriage. “It is my strong belief, based on sound legal advice, that gay marriage would require constitutional change and in my view a referendum on this issue at this time would be divisive and unsuccessful and, furthermore, would jeopardise the progress we have made over the last 15 years”. These words instilled in the Irish public the notion that a referendum was necessary in order for equal marriage to be legal. However, the opposite argument can easily be made. Mr Lenihan’s words were formed in light of the decision handed down by the courts in the case of Zappone and Gilligan. Here High Court Justice Dunne emphasised she could not recognise the Canadian marriage of Katherine Zappone and Ann Louise Gilligan due to Constitutional restrictions founded in Article 41. Since this decision, the Oireachtas and indeed the judiciary have used it as a scapegoat in relation to equal marriage legislation.
What makes the Irish legal system slightly more complex is the fact that we have a written Constitution, while countries such as the UK do not
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First of all, it is necessary to contextualise the case in terms of how the law is administered in Ireland. Ireland operates under common law, meaning that the judiciary in this country make the law through the decisions they hand down, however other common law countries can effect Ireland. For example, Britain is a common law jurisdiction. In the Irish case of B v R, Justice Costello accepted the old English case of Hyde v Hyde, in its definition of marriage as being “the voluntary union for life of one man and one woman, to the exclusion of all others”. Note that there is a two hundred year lapse between these cases! What makes the Irish legal system slightly more complex is the fact that we have a written Constitution, while countries such as the UK do not. For the legislature and the judiciary alike, this means that all laws and indeed all cases must be confined to within the meaning of the Constitution. While on the one hand it protects the people from the fleeting trends of politics, protecting the moral compass and foundation of the State, it also creates a severe amount of tension between the judiciary and the Oireachtas. Many of the concepts outlined in the Constitution are vague and lack definition, meaning that often it is the job of the judiciary to interpret what these concepts might actually mean in practice. Marriage under Article 41 is one of these notions.
There is no definition of what constitutes a family in the Constitution. If we were to define the family as only existing within the traditional family unit, those children born to single mothers and fathers, lesbian and gay couples would be completely marginalised.
The Zappone case was seen as the first case to challenge Article 41.3 directly. Article 41.3 reads “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”. Zappone and Gilligan sought to have their marriage recognised by the Revenue Commissioner in Ireland. An old common law rule more or less allows for the recognition of foreign marriages unless there is some public policy issue relieving the State from such. The Revenue thus said that the Canadian marriage could not be recognised by the effect of Article 41.3. The couple then petitioned the High Court that the Revenue’s finding was unconstitutional. The decision of Justice Dunne shows the attitude of avoidance played by both politicians and judiciary with regards to this issue. She says that because marriage is stated in the Constitution it is not up to her to create a new implicit right. Meaning that its explicit statement in the Constitution means that it is not open to interpretation. She then contradicts herself by saying that because there was no legislation at the time allowing for equal marriage, this indicated the attitude of the public was against such. The contradiction lies in that, at first she emphasises that the concept of marriage cannot simply be interpreted and swayed by public perception, then she undermines this premise by saying that clearly this is not what the majority want as the government haven’t legislated for it. Ultimately this was the so-called “sound legal advice” which Minister Lenihan relied on.
Others argue, that even though marriage is not defined in the Constitution it is confined to opposite sex couples as the Constitution sets out that the family is based on marriage. However again this is untrue. There is no definition of what constitutes a family in the Constitution. If we were to define the family as only existing within the traditional family unit, those children born to single mothers and fathers, lesbian and gay couples would be completely marginalised. They would have no constitutional rights simply because the family they were born into doesn’t fit into Catholic social teaching. The fact of the matter is that the landscape of Irish family life is thankfully more realistic and the legislature openly recognises that. The only reference to what an ‘Irish family’ could potentially look like, is made reference to in Article 41.2.1. This recognises the valuable contribution a mother makes to Irish society by staying in the home. What this might imply is that in order for a family to be recognised under the Irish constitution it must at least have a mother.
On an international level, Ireland is in fact the first country to hold a referendum on equal marriage. It is clear that the need for this referendum has largely been an instrument of propaganda.
When the Supreme Court ruled on a completely different surrogacy case, Chief Justice Denhem made some extremely relevant remarks in relation to the concept of the mother that further weaken any notion of defining a traditional family. Basically any reference to the mother in the Constitution is incredibly weak. She said “There is no definitive definition of ‘mother’ in the Constitution. Nor is there anything … which would inhibit the development of appropriate laws on surrogacy”. What this opinion illustrates is that the traditional vision of what a mother is in this Constitution is open to interpretation, thus indicating that the entire conception of the family is as well. Her indications emphasise that there are no constitutional barriers effecting an open interpretation of the mother. The same can be said for equal marriage in this jurisdiction. There is no constitutional barrier against equal marriage. What exists is yet another lacuna in the law. Yet another issue which the legislature feels is too controversial for them to legislate upon.
The progress Minister Lenihan referred to in 2006, was partially an appeasement of the more progressive parts of the party and was pushed by the Greens. The Civil Partnership Act only allows for same-sex couples to qualify for a civil partnership. Some parts of the equal marriage movement at the time criticised it as inevitably delaying real equal marriage legislation. The proposed gender recognition bill goes hand in hand with this. The bill aims to allow transgender people to be recognised by the state under their true gender. However, this bill also compels those wishing to apply to have dissolved their marriage or civil partnership in order to be eligible for recognition. This is again another avoidance of the issue by the legislature. Had this section been omitted, a small number of equal marriages would be recognised by the State and arguably here would lie the precedence for the courts to enact the same.
It is obvious that the great political benefit of this referendum is that it avoids political responsibility for enacting generally popular legislation that might enrage certain parties bases. The latest opinion poll showed some 76 percent of voters in favour of equal marriage. It is important to note that there has been nothing stopping the Irish government from legislating on the issue. On an international level, Ireland is in fact the first country to hold a referendum on equal marriage. It is clear that the need for this referendum has largely been an instrument of propaganda. Politicians would say this is forced by the supposed blockade of our written Constitution, which so many other countries lack. This is unlikely to be the case and even if it was the case it would be terrifying. A constitution is generally a tool for upholding rights not blocking them. It was accepted in the US that the question of equal marriage was a non-constitutional issue, as a constitution is generally not meant to legislate on specific issues but used more as a statement of fundamental rights. While the road has hardly been smooth in the US, 35 states have legislated in favour of equal marriage. While three states, Washington, Maine and Maryland, recognised equal marriage through popular vote, the United States has not required a referendum to change access to marriage. If anything, the Constitution has been used as a weapon by the equal rights activist, enabling the repeal of the Defence against the Marriage Act 1996, which attempted to define marriage to only heterosexual couples. This was found to be unconstitutional.
It is not an exercise of the democratic voice, it is an abdication of responsibility by the successive governments in legislating on an issue which so clearly needs to be legislated on.
In May 2015 the electorate will be asked to redefine what is meant by the Family in the Constitution in order to enable equal marriage. As shown, the Family is not defined, nor does it need to be. In essence, the only real value of the referendum when it passes is to give to those who have been suppressed by the State their ‘day in court’ so to speak, and in that it should be supported by as many on the day as possible. However, it is not an exercise of the democratic voice, it is an abdication of responsibility by the successive governments in legislating on an issue which so clearly needs to be legislated on. This progress Lenihan referred to is dangerous if it’s used as a precedent to slow down other social advances by leaving them to a referendum a few years down the line. In truth the so-called progress made is the only thing unconstitutional about equal marriage in Ireland. The upcoming Equal Marriage referendum will make it null anyway but The Civil Partnership Act and its many discrepancies should have been held accountable under Article 40.1 which states “All citizens shall, as human persons, be held equal before the law”.
