Non-Heterosexual Marriage and the Irish Constitution

Yoda

Exactly what provision of the Irish Constitution defines marriage as something only available to a man and a woman (excluding other options)?

One hears from time to time that "same-sex domestic partnership might be considered, but same-sex marriage never, because it would involve a change to the Consititution".

seamus

I don't think there's anything in the constitution that could be used to fight it. Article 41 specifically uses non-sexual terms such as "spouses" and "parties". The consitution also specifically states that all people are equal in the eyes of law. One would assume that if two people are equal, then their unison is also equal (to other unisons - How can one unison be valid, and another not be valid, if all 4 people are equal?).

Yoda

Here is Article 41. I don't see anything that defines the sex of the spouses.

ixoy

So the constitution allows it but surely that's a different thing from the Church? The State can say "Yeah sure you can get married" and then point out marriage is done by a church. But the Church here doesn't have to marry us right? Therefore the State is in the clear. The only thing being if the Church ever lets us get married then the State is constituionally bound to recognize it.

sunbeam

Originally posted by ixoy
So the constitution allows it but surely that's a different thing from the Church? The State can say "Yeah sure you can get married" and then point out marriage is done by a church.

But not all marriages happen in churches. Plenty of people have civil ceremonies.

seamus

Originally posted by ixoy
So the constitution allows it but surely that's a different thing from the Church? The State can say "Yeah sure you can get married" and then point out marriage is done by a church. But the Church here doesn't have to marry us right? Therefore the State is in the clear. The only thing being if the Church ever lets us get married then the State is constituionally bound to recognize it.

Official recognition of the Catholic church was removed from the Constitution a good while back.

The Catholic church could choose to recognise gay marraige (HA!), but the state wouldn't recognise any gay marraiges performed.

At the end of the day, regardless of where you get married, you have to sign the register. You could perform a marraige in a caravan with a dog as your best man, and a couple of sheep as bridesmaids, and so long as you sign the register afterwards, it's a legal marraige.

Yoda

I'm not interested in religious ceremonies or sanction with regard to the theme of this thread.

I've heard it said that "civil marriage" (that sign-the-register thing which is a contract between you and your partner and the State) would not be considered because "it would require a change in the Consitution to allow it".

In fact, I think Fianna Fáil or Fine Gael representatives said this in articles in the GCN before the last election.

The argument was that a more limited "civil union" would be "possible" because it could just be legislated, since no referendum would be required.

But I don't think any such change to the Consititution would be necessary. I think that this suggestion is just a way of squeemish people in the Dáil to give some, but not all, of the rights and responsibilities to same-sex partners.

Granted that even "civil union" would confer more rights and responsibilities than same-sex partnerships have at present, it seems that there is nothing to prevent Ireland from introducing same-sex "civil marriage".

Opinions?

Syth

Well the best (and only definitive) way to find out is to try it. Are there any laws which mention a married couple as a man and a woman? If not then maybe one could argue that same sex marriages are not illegal. Then you get 2 men or 2 women and they try to get married. Just drag it through the courts untill it's officalally recognised.

sceptre

Originally posted by Yoda
I've heard it said that "civil marriage" (that sign-the-register thing which is a contract between you and your partner and the State) would not be considered because "it would require a change in the Consitution to allow it".

When the courts are considering any challenge to the constitution or case that involves a constitutional article one of the perspectives they can take is the "historical" perspective - basically, what did they mean when they wrote it. If they chose to use that perspective then they would assume that what was meant by marriage was something between a male and a female.

I'm not a great fan of the historical perspective at times to be honest, though it does prevent words being redefined over time in order to twist the constitution into something it wasn't meant to be. Being one of those annoying liberal types, I'd cheat here and use the literal interpretation, which wouldn't preclude same-sex couples getting wed.

So it doesn't prevent the idea, but depending on how the Supreme Court interpret it when a law is passed allowing it is challenged in the courts (and let's face it, someone will challenge it & if no-one else does, Youth Defence:rolleyes: probably will) the ruling of the Supreme Court may (and given that they're not nearly as trendy now as they were in the early 1960s, probably will) preventit in the ansence of a specific amendment.

seamus

Originally posted by sceptre
When the courts are considering any challenge to the constitution or case that involves a constitutional article one of the perspectives they can take is the "historical" perspective - basically, what did they mean when they wrote it. If they chose to use that perspective then they would assume that what was meant by marriage was something between a male and a female.

So basically you're saying, because it's ambiguous (ie the concept of same-sex marraiges didn't exist when the constitution was written), the constitution would have to be changed to specifically state "Marraige is defined as the unison of two people of any sex, race, or creed."?

Heh. Bit of a mind-bender.

Yoda

Sceptre suggested
Being one of those annoying liberal types, I'd cheat here and use the literal interpretation, which wouldn't preclude same-sex couples getting wed.

As would I (though I wouldn't think it cheating). "If it is not forbidden, then it is allowed." And since posadh and teaghlach are not specifically defined "idir fhear agus bhean"in the Consitution it would seem that legislators would be free to introduce "civil marriage" without holding a referendum.

The point is that some members of our society is unable to take advantage of the rights and responsibilities that other members of our society are. If the Constitution does not forbid same-sex "civil marriage" then the easiest thing to do is simply add "regardless of sex" into other legislation regarding marriage. The alternative is to introduce "civil union" which is a different relationship, with different rights and responsibilities, as yet undefined by law, which means long delay and argument which could go on indefinitely. And the point is that all members of our society should have the right to the same rights and responsibilities with regard to partner and home.

Yoda

Seamus said
So basically you're saying, because it's ambiguous (ie the concept of same-sex marraiges didn't exist when the constitution was written), the constitution would have to be changed to specifically state "Marraige is defined as the unison of two people of any sex, race, or creed."?

I'm saying that it doesn't appear that the Consititution needs to be touched at all. It already protects families and marriage. It seems to be a question of other legislation allowing same-sex partners to avail of that protection.

sceptre

I think the protection of the family thing is a red herring to be honest. I assume it's brought up by those who'd rather that all gay people were skinned and deported but one doesn't affect the other. It wasn't the protection of the family provision that kept divorce out of this country - it was the part that said that the state shall make no law allowing for the dissolution of marriage.

And no, I wouldn't consider it cheating myself (I tend to use the word a little too much to be honest)

Yoda

The Constitution protects families and marriage. Since it doesn't say that families have to be heterosexual, it appears to me that it protects same-sex families, though legislation doesn't allow them to marry. Yet.

yellum

But what was implied by the defintion of family ?

Yoda

According to the Foclóir Beag:

teaghlach a1 muintir an aon tí le chéile, lánúin agus a gclann.

'the people of one house together, a couple and their children'

seamus

Originally posted by yellum
But what was implied by the defintion of family ?

As per sceptre's decription of how it would be interpreted, Article 41.2 seems to imply that Article 41 as a whole, talks about a couple as a man and a woman, since:
Article 41.2
1. In particular, the State recognises that by her life within the home, woman gives to the State a support without which the comman good cannot be achieved.
2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by econmic necessity to engage in labour to the neglect of her duties in the home.


Which I think is a bit outdated and sexist, but it implies that the entire article refers to the family as a working Father, a housewife, and kids...

Opinions?

Yoda

I object to the implication. While it refers to the role of women in families, it does not define families constituents in any particular way. A single-parent family with only a father is still a family. A single-parent family with only a mother is still a family. There is no language in the Constitution which states that same-sex families are not families.

seamus

Originally posted by Yoda
I object to the implication. While it refers to the role of women in families, it does not define families constituents in any particular way. A single-parent family with only a father is still a family. A single-parent family with only a mother is still a family. There is no language in the Constitution which states that same-sex families are not families.

Agreed.

You just need someone to attempt to marry their own sex so, and see what happens....

Yoda

Sounds expensive, though.

yellum

Originally posted by seamus

You just need someone to attempt to marry their own sex so, and see what happens....

/me gets out his blackbook and starts calling numbers.

Actually anyone live or work near a registry office ? I'm wondering what their forms are like for a marriage application.

Yoda

Provisions for getting married are here. It doesn't specify gender there. The specific form for getting married is here. It doesn't specify gender either.

(APPLIES TO ALL MARRIAGES):

To contract a valid marriage in this state the parties to the marriage must:

- have the capacity to marry each other;
- freely consent to the marriage; and,
- observe the necessary formalities as required by the laws of this State.

Marriage by civil ceremony is a civil contract. Marriage by certain religious ceremonies is also recognised by civil law as being a civil contract. Persons wishing to get married by religious ceremony should approach the authorities of the religious denomination concerned for advice on how to proceed. Those wishing to get married by civil ceremony should seek advice from the Registrar of civil marriages for the district in which they reside, or in which they wish to get married. A list of these (Civil) Registrars, with names and telephone numbers appears on the reverse to the notification of intention to marry form which is enclosed. For persons who wish to marry outside this State or who have been previously married and wish to remarry please see section 3.


The Family Law Act, 1995 introduced the following two requirements for a valid marriage:

a) the minimum age at which a person, ordinarily resident in the State, may contract a marriage valid in Irish law is eighteen years of age (see section 1.1 below); and,
b) each person marrying on or after August 1, 1996 must give three months notification to the appropriate Registrar for the District in which the marriage is to take place (see section1.2 below).

yellum

So whos going to attempt to get married to their partner then ?

Yoda

I thought it was going to be you....

Victor

Yes, I think anyone (not just couples - should I include threesomes? ) should be able to have civil union.

---

I think the crunch comes in "3. 1° 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." was probably designed by the Constitution's authors and will probably be interpreted by the courts as meaning to protect "man and woman, with or without children" (the Constitution says the state cannot dictate in any manner as to whether a couple have children or not, it is for the couple themselves - the condom legislation cases).

Secondly, there is a common misperception as to what marriage is in the eyes of the law. In the eyes of the law, it is essentially about sexual intercourse for the purpose of having children. You can get an annulment if the other person has an STI, is gay or the marriage has not been consummated (i.e. the couple haven't had sexual intercourse), etc. Gay couples can't have "sexual intercourse" (them having "sex" is another matter).

Thirdly, seeing as there had to be an amendment to validate adoption, adoption and the concept of a gay couple adopting was not contemplated by the Constitution's authors so a gay couple at that time couldn't have children in any way or form.

http://dictionary.reference.com/search?q=marriage
http://dictionary.reference.com/search?q=family

Of the dictionary.com definitions, the courts would probably go closest to these:

Marriage: "legal union of a man and a woman for life, as husband and wife"

Family: "Two or more people who share goals and values, have long-term commitments to one another, and reside usually in the same dwelling place.” - this being subject to the above

According to the Foclóir Beag: teaghlach a1 muintir an aon tí le chéile, lánúin agus a gclann. 'the people of one house together, a couple and their children'

Apparently "teaghlach" has also been interpreted as meaning "All the members of a household under one roof." and presumably it comes from teach - house. It was used in a refugee(?) case to try to bring the grandparents of an Irish-born child to Ireland, when they weren't themselves qualifying refugees (I can't remember what status the parents had, but possibly were given leave to remain on humanitarian grounds - i.e. they had settled in Ireland with their child - whole different argument). the premise of the case was that grandparents can and often are part of a household.

---

Humour:

From http://dictionary.reference.com/search?q=marriage "In the pre-Mosaic times, when the proposals were accepted and the marriage price given, the bridegroom could come at once and take away his bride to his own house (Gen. 24:63-67)." Now that is what I call "cash and carry"

yellum

Originally posted by Yoda
I thought it was going to be you....

If I had a partner who I loved and wanted to spend the rest of my life with then I would.

Yoda

I do, but I am not sure I want to be hounded by the tabloid media. I have other things I'd rather be famous for.

Perhaps a call to a certain senator....

Nevyn

Originally posted by Yoda
I do, but I am not sure I want to be hounded by the tabloid media. I have other things I'd rather be famous for.

Perhaps a call to a certain senator....

ahhh Dont you think David has done more then his fair share already ?

what is the defination on " capacity to marry"
would that be gender of not already being married.

Yoda

Thaed proposed
ahhh Don't you think David has done more then his fair share already?

Perhaps. Or indeed. But he may be inured to tabloid ugliness. Not that one would wish more on him.

Perhaps if fifty couples were to organize ar fud na tíre to apply for marriage certificates en masse....?

Yoda

Victor opined
I think the crunch comes in "3. 1° 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." was probably designed by the Constitution's authors and will probably be interpreted by the courts as meaning to protect "man and woman, with or without children"

Why do you assume that the courts would try to put their minds back to conditions which obtained in 1937 when interpreting the provisions of 41.3.1°?

(the Constitution says the state cannot dictate in any manner as to whether a couple have children or not, it is for the couple themselves - the condom legislation cases).

The Constitution says no such thing.

Secondly, there is a common misperception as to what marriage is in the eyes of the law. In the eyes of the law, it is essentially about sexual intercourse for the purpose of having children.

What?! In the eyes of the law, it is a contract between the State and its citizens, affecting taxation, inheritance, and numerous other rights and responsibilities of the State and the partners who enter into the contract.

You can get an annulment if the other person has an STI, is gay or the marriage has not been consummated (i.e. the couple haven't had sexual intercourse), etc.

Does the State confer annulments?

Gay couples can't have "sexual intercourse" (them having "sex" is another matter).

I should be very surprised to find that the State defines sexual intercourse as having to do with penises and vaginas. Certainly the Constitution does not do so. If legislation does, please quote it with its reference.

Thirdly, seeing as there had to be an amendment to validate adoption, adoption and the concept of a gay couple adopting was not contemplated by the Constitution's authors so a gay couple at that time couldn't have children in any way or form.

The Sixth Amendment to the Constitution, passed in 1979 (42 years after the enactment of the Constitution, ensured that adoption orders made by the Adoption Board could not be declared invalid because they were not made by a court. It had no other ramifications, nor assumptions.

Of the dictionary.com definitions, the courts would probably go closest to these:

Marriage: "legal union of a man and a woman for life, as husband and wife"

Family: "Two or more people who share goals and values, have long-term commitments to one another, and reside usually in the same dwelling place.” - this being subject to the above

There is no reason whatsoever to assume that the courts would consult dictionary.reference.com, for one. My argument is that the Constitution does not define Family in terms of the sex of the head(s) of the household, any more than it defines Marriage as a union of two people of opposite sex. Indeed, as noted elsewhere in this thread, even the application for a marriage licence doesn't request that either party indicate his or her sex. Loophole? Perhaps. "If it is not forbidden, then it is allowed." (I cannot tell whether the application form for a passport does, as it does not appear to be available online, though a birth certificate is required to be supplied with the application. This gives some of the rules. Apparently it's intentional that the form not be available on the internet, but you can order one here.)

Annasopra

An interesting quite similar debate is taking place on the GCN website

http://www.gcn.ie/newgcn/forum/topic.asp?TOPIC_ID=791

Yoda

An interesting opinion on why civil unions are not enough by American law student Chris Geidner. "If securing equality in marriage means we're going to have to stir up a hornet's nest, so be it."

casper-

What happens if you get married in a country that does allow same-sex marriages and then return to Ireland? Do they disregard the official marriage certificate?

I know my own marriage certificate from Canada was accepted here for several applications, so in theory, if that was of a same-sex marriage, it would then be legal here (?)

l3rian

the state shouldnt have the right to restrict someones personal life, as long as it doesnt effect anyone else
male gay marrages = more ladys for the real men