Gay marriage under focus in review of family rights

damien

Gay marriage under focus in review of family rights
Liam Reid and Joe Humphreys

A key Oireachtas committee is to look at whether the Constitution should be changed to allow for gay marriages as part of a major review of family rights.

The all-party Oireachtas committee on the Constitution has been asked by the Taoiseach, Mr Ahern, to conduct a review of the articles in the Constitution relating to the family.

Part of the review will include the issue of the rights of gay couples, the chairman of the committee, Fianna Fáil TD, Mr Denis O'Donovan, said last night. He said committee members would be looking at all options regarding the provision of greater rights for gay couples.

The committee will be inviting various groups and legal experts to make submissions and presentations on the issue. The committee will meet later this month with constitutional lawyer, Mr Gerard Hogan, to discuss the issues it would be examining, including the recognition of same sex unions.

On that issue, Mr O'Donovan said he did not want to prejudge the work of the committee. "We will be taking a very objective look at [same sex unions] but I can't predict what the outcome will be here," he said.

The committee is expected to make a full report to the Government by next July.

There had been fundamental changes in society since the Constitution was written in 1937. "We're looking at the whole area of family rights and children's rights," Mr O'Donovan said. "If you look at the provisions for the family in the Constitution, they were written when women were seen as being tied to the kitchen sink."

Two members of the committee said yesterday that they favoured the State allowing for gay marriages. The Labour Party TD, Ms Jan O'Sullivan, said her party would "favour gay couples having the same rights that everyone else has, whether you call it marriage or something else".

"We feel the option should be available to gay couples" she said.

The Fianna Fáil TD, Mr Barry Andrews, also said he was in favour of State recognition of gay marriages. But he foresaw difficulties in relation to the other rights it would confer on gay couples on issues regarding family rights, such as adoption.

On Saturday the leading constitutional lawyer, Prof William Binchy, told a conference on human rights and relationships that official recognition of same sex unions was likely to be imposed on the State through European case law if the Government failed to legislate for it.

He said that the domino effect of European case law meant that "if we do nothing our law will undoubtedly be changed for us".

He said that options for legislators included the abolition of marriage, the introduction of a civil partnership, opening marriage to include same-sex unions, and introducing different categories of marriage.

luckat

Glad to see the Government is having the sense to think about this - marriage is undoubtedly a stabilising factor in society, and making it available to an increasingly large chunk of people is a good idea.

moridin

There's apparently going to be a poll on this on the Gerry Ryan show this morning. I've had a look at the RTE webpage and can't find it, I'll keep an ear out and post a url if I hear one.

edit: it's a text poll apparently - current standings are 70/30 in favour of the amendment

Yoda

There is no impediment to gay marriage in the Constitution. I challenge anyone to find an actual ban. While the Constitution does refer to the special place of the woman in the home, it does not actually specify that a home must have a woman in it to be a family.

ixoy

There was an article in the Weekend supplement of the Irish Times, just over 2 weeks ago, that detailed some of the legal issues behind the proposals. If anyone has a copy (I only read someone elses) then they might have a clearer answer than what I can recall.

It is, as you suspect they'd probably say, based around Article 41 which essentially places the family as the centre unit in Ireland. Bills, like ones for co-habiting couples, want to add (and again I'm working for memory) a few extra lines to Article 41 (rather than a re-write) to provide for a marrriage which does not contain a family. I think it's the fact that the constitution links the concept of marriage directly with that of family that's the problem from a legal perspective and again I feel the original article expressed it more succinctly.

Yoda

Nope. Begs the question as to what a "family" is. The Constitution does NOT define "family" and does NOT specify that a family must be composed of a man and a woman, much less a breeding pair. Old couples and barren couples are permitted to marry.

JPS

I'm for anything that pisses off the catholic church, will there be two brides or two grooms or what?

Yoda

This has NOTHING WHATSOEVER to do with the Catholic or any other church. The Constitution and Irish law allows some, but not all, of its citizens to enter into a legal relationship between each other and the State. That relationship grants the citizens who avail of it certain rights and responsibilities. Those rights and responsibilities are DENIED to homosexuals in Ireland. It is that injustice which must be addressed by the State.

ixoy

Interestingly, as far as I can make out, Irish marriage law is defined in the Marriage Act of 1844, which predates our constitution. Any changes to that have been ammendments to the original act, such as the Marriage Act of 1972. I can't actually get my hands on the 1844 act as the government website only covers the acts passed by the free state - anyone know the wording? Of course a law reform doesn't neccesitate a constitutional reform which is Yoda's contention although I still feel there is some niggling point that we're missing because ootherwise it would have been ammended long ago.

JPS

The Irish constitution and indeed Irish society as a whole has everything to do with the diet of fear and guilt we were fed as a nation by the Catholic church for the last five hundred years. The fact that homosexuals haven't got these rights that are so important to you is because church and state were inextricably one. Its only now that the church has been exposed for the sham it is that we can think about such questions as gay marraige in the light of logic without being blinded by all manner of hypocrite quoting "no man shall lie down with another man lest he want to burn in hell" or however it goes.

By the way isn't "Do you think homosexuality is a sin?" a great question to ask a politician?

Yoda

I liked the question Kerry and Bush were asked in the third Presidential debate: "Do you believe that homosexuality is a choice?" Evidence is that it's not, and if it's not, then it's "more" wrong to deny homosexuals the same rights as other people. good question.

The sin thing doesn't get the same result, I think.

Yoda

ixoy wrote:

I can't actually get my hands on the 1844 act as the government website only covers the acts passed by the free state - anyone know the wording?

Can you get to the National Library?

Of course a law reform doesn't neccesitate a constitutional reform which is Yoda's contention

My contention is that there is no Constitutional impediment to gay marriage

although I still feel there is some niggling point that we're missing because otherwise it would have been ammended long ago.

My challenge stands: is gay marriage forbidden by Irish law? It does not seem to be by the Constitution.

LegacyUser

I think the ban on gay marriage in the Constitution comes from how the Courts interpret it, rather than it being explicitly stated. The COurts have interpreted marriage as being between a man and a woman and a referendum would be needed to alter that.

Yoda

1. There is no ban in the Constitution on gay marriage. If the Courts have ruled on this question, you must cite the ruling.

2. A referendum alters the Constitution. If there is no ban in the Constitution, then the Constitution need not be altered.

LegacyUser

If the Courts have interpreted "marriage" as a union between a man and a woman, then any legislation changing that could be challenged in the Supreme Court and almost certainly be ruled un-Constitutional, thus making a referendum necessary.

The Courts interpret marriage in this way every day through numerous family law rulings.

Yoda

That's a very, very big if, and to date I have seen nothing but hearsay and speculation on this matter.

If it is not forbidden, then it is allowed. Have the Courts forbidden it?

Do you see what I am getting at?

ixoy

Yoda wrote:

That's a very, very big if, and to date I have seen nothing but hearsay and speculation on this matter.

Steve77's interpretation sounds correct. If it wasn't, I'd imagine someone, such as Senator Norris, would have tested the waters now. Got a bf? Why not test it out...

LegacyUser

The Courts interpret marriage as between a man and a woman every day. Divorce, Judicial Seperation, Barring Orders, the lot.

Legislation would certainly be challenged.

A referendum would certainly be neccessary.

Yoda

Sorry, Steve77, but that doesn't make sense. What provision of the Constitution would have to be changed? The part that says that a family must be composed of a breeding pair? The part that says a family must be composed of a man and a woman? No such text exists. The part that says a married must be composed of a breeding pair? The part that says a married couple must be composed of a man and a woman? No such text exists. Accordingly, there is no Constitutional impediment to gay marriage.

The Courts do not "interpret" marriage as "between a man and a woman" every day. They implement and deal with legislation which assumes that a married couple is a man and a woman. This is a very different thing from saying that there is actual legislation which specifies that a married couple must be a man and a woman, or legislation which specifies that a married couple may not be a man and a man or a woman and a woman.

Legislation which says what to do about marriage may make a assumption, but that legislation is not an implementation of a ban on gay marriage in the Constitution. My point is that certain rights and responsibilities are granted heterosexual couples, and I suspect that (depending on what the legislation is, which no one seems to know) the legislation can be extended to non-heterosexual couples with a couple of sentences.

As the Constitution itself does NOT define the sex of the partners in a marriage it therefore does NOT prohibit same-sex partners. If you think it does, and think that the text of the Constitution would have to be changed to permit it, please cite the specific provision of the Constitution that bans such unions, and indicate what text would remove that ban.

damien

Because the law is representation of ideas using words, many aspects of the law are open to interpretations.

Some laws are not zero sum, just because it doesn't state same sex marriage isn't illegal doesn't mean it is legal. That is why previous court rulings as well as the current views of judges are used when rulings are made. Due to the fact that the constitution is not totally clear of one way or the other it is often up to the court to decide. Since previous rulings in the courts defined a family it now needs a constitutional change to make it clear.

ixoy

damien.m wrote:

Since previous rulings in the courts defined a family it now needs a constitutional change to make it clear.

Sounds right. If I remember the proposed ammendment isn't to alter existing wording but to add additional wording that would clearly define that a marriage can exist between two consenting adults.

Yoda

1. Which previous court rulings defined a family, and how did they define it? Be specific, or it's speculation.

2. What text of the Constitution requires changing, and what new text would be required?

(If the Constitution is silent about something, then it is only the legislation which needs to be changed. In Massachussetts, remember, the courts ruled that there was no constitutional impediment to marriage, and therefore the laws had to be changed.)

Yoda

ixoy wrote:

If I remember the proposed ammendment isn't to alter existing wording but to add additional wording that would clearly define that a marriage can exist between two consenting adults.

Surely this is already implicit in the Constitution, which already does not clearly define that marriage can exist between a consenting adult male and a consenting adult female either.

LegacyUser

Janey Mac Yoda relax. I think we are all on the same side, just differ about how to reach our goal!

You're right- this IS all speculation. The only way it would be sorted out is if the legislation was challenged. But the thinking seems to be that Gay Marriage would not stand a Constitutional challenge on the grounds outlined above.

The key is NOT the actual text of the Constitution-which does not define marriage as you say. It is the way the Courts have interpreted that text. Up to now, marriage has been viewed by the Courts as a Union between a man and a woman. Anyone challenging this could state that on this basis marriage cannot be between two people of the same sex. It is up to the Court to decide- and my feeling is it wouldn't decide our way.

LegacyUser

True, the constitution doesn’t specifically define marriage as not being a union between a man and a women, but it does give some pointers.
Article 41.1 describes it as a "fundamental unit" and a "moral institution". Article 41.2 goes on to say it’s a "necessary basis for social order and indispensable to the welfare of the State."

The rational beyond such terminology clearly discriminates against unions not conducive to the sustenance of the Country. Civil marriage is more then a celebration of a couple’s love, but a social endorsement given by way of tax breaks and other benefits. Gay marriage is ultimately sterile, in view of popular opposition to adoption, and so does not promote the interests of the state. Thus, it is rightly excluded from the judicial definition of marriage acted upon on a practical level.
Anything else would be repugnant to mother constitution.

damien

Yoda, you refuse to even entertain our arguments unless we can quote law text, using the same logic we refuse to entertain your argument that there is nothing stopping a same sex couple from walking into a registry office and getting married. So go right ahead and do it. Try to get married.

LegacyUser

"This has NOTHING WHATSOEVER to do with the Catholic or any other church" says Yoda.

The catholic church, as the custodian of 90% our citizen's religious sentiments, might be called upon by the review committee to help encipher the term "Moral institution".

LegacyUser

Sorry Breaksmay I can't hear you all the way back there in the 1940s.

I think the day we found out that priests had a penchant for interfering with children was the day they ceased to have any rights to interfere in political matters.

falteringstar

I can find nothing anywhere in Irish law preventing gay couples from marrying.

• The constitution does not prevent it because it fails to define ‘Marriage’ in any way at all.
• Nor have I yet found it defined as strictly between a man and a woman, but have noticed that these are simply qualifications for marriage, for example you must be a man or a woman, not necessarily that it must be between a man and a woman.
• For all marriages in this country you must provide three months notices, on the application to give this notice to your local authority it asks for the particulars of each person. But no where in it does it refer to them as man and woman, proposed bride or groom, but as “first/second party to the proposed marriage”.
• Article 40 1 All citizens shall, as human persons, be held equal before the law.

The problem therefore is not with the constitution, while there are many other problems with it, but in its interpretation. The constitution pledges to protect the institution of marriage and the family from attack, but I fail to see how it can define an attack on marriage when it clearly fails to define marriage, the constitution therefore must fall back on the legal definition of marriage which can be changed by the Dail without recourse to a referendum. [So why don’t they do so?]

While the courts have interpreted marriage as between a man and a woman in numerous family law issues, this is only because they have not been presented with a different set of circumstances; they have only ever come up against heterosexual couples. It is therefore not strictly an interpretation but just how things have been until now. {Very open to correction}

Unfortunately I was informed some time ago by Fine Gael and Labour that a constitutional amendment would be necessary due to the popular interpretation of the constitution, but months on I still fail to see how this is the case.

[I know that someone one some time ago posted the following suggestion as a joke in response to the letters I received from the political parties, but the only way to find out what if any real constitutional and legal barriers there are to gay couples marrying is for one or two to actually try and get married! Find out how http://www.groireland.ie/getting_married.htm.]

falteringstar

Dr. Breaksmay, first my sympathies that you missed the last bus out of the dark ages, and welcome to the 21st century. I’m afraid the Catholic Church no longer has any political power or moral standing, in this or any reasonably developed country. In 1972 the entire country voted for the Fifth Amendment to the Constitution removing the special place of the Catholic Church, and Article 44 2.2 guarantees that the state will not endow any religion. Therefore they will not be consulting the Church RE: “Moral Institution”.
As a philosophy student I can tell you firstly that there is nothing immoral about gay couples marrying, adopting, or being included in the definition of ‘Family’. And secondly that there IS something inherently immoral about not allowing two people who love each other to marry, adopt, or be considered a family.
People have finally woken up and realised that the constitution is all wrong, in fact maybe immoral, it promised equality before the law to all but failed to deliver; they’ve realised that religion doesn’t dictate law (thankfully). And are finally using their own ethics and logic which is universal to decide what is or isn’t moral.

LegacyUser

Firstly, your peoples dismissive and derisive treatment of the Chathalic Church is unwarranted and misguided. The Church condemns abuse, harassment, and discrimination against people who are homosexual. It teachs that homosexuals are to be accepted and treated with the respect, compassion, and dignity they deserve. It has allowed recent legislation combating injustices to pass unopposed. Just because it does not see these changes as creating or paving a path toward a parrell legal institution to marriage, shouldnt make it pariah to be abused by members of an embittered subculture, unaccepting of their situation and legal entitlements. The Church stands in defense of the fundamental institutions of the family and marriage, whose structure is firmly cemented by thousands of years unaltered practice. THe recognition of same-sex unions on the same terms as marriage would suggest to future generations and society as whole that marriage as husband and wife, and same sex relationships are equally vailid contexts for the raising of children. Scripture and the natural order clearly point out that this is not the case.

Secondly, its true that the role of the Catholic Church has been greatly undermined in recent years, but this trend is immeasurable more complex and socially rooted then can be attributed to the kiddy fiddling revelations of recent times alone. But to say its influence has ended since the 5th ammendment is a nonsense. That was cosmetic political measure necessitated by the Sunningdale agreement and was welcomed by the church, which has long moved away from entanglement in political affairs.
Today more and more people, particularly parents, are expressing concern at what they see as the moral and social disintegration of Irish society. They feel isolated, unsupported, and powerless in the face of a persistent undermining of the values which have long sustained Irish society and the family values of self respect and self control. The Church vocalises such peoples growing concerns and will pose a powerful force in preventing further corruption by people who arrogantly presume "their ethics and logic are universal".