FYI - McDowell explains

The_Minister

Just thought that you guys should know, McDowell published his reasons for voting down the Civil Unions Bill in the Irish Times today. I'll stick up a link tomorrow when I have ireland.ie access.

Stark

What was the title of the article or what section was it in? I'm trying to find it on ireland.com but can't.

The_Minister

It was in the Opinion pieces. I'll have access later in the day, so I'll stick it up if you can't find it.


I must admit, it wasn't new to me. I spotted some of the problems that he highlighted myself, when I read Labour's Bill.

Annasopra

Labour's civil union Bill would not stand up

Accepting the Bill would cause constitutional issues and be politically dishonest, writes Michael McDowell.

I have been taken to task for not accepting Labour's civil union Bill. The Dáil amended the second reading resolution to allow more time for a comprehensive civil partnership Bill to be brought before the House and to await the outcome of the Zappone appeal pending in the Supreme Court.

I have for the last two years taken steps to develop a legislative proposal for the recognition of "civil partnerships" between persons who are not married but who are co-habiting domestically in a long-term relationship of inter-dependency, whether that relationship is heterosexual, homosexual or non-sexual. The idea of civil partnerships is to enable the parties to engage in such relationships as to create between themselves, and between themselves and society, a recognised set of rights and duties in order to achieve functional fairness and equity. It is not to create a parallel system of statutory marriage.

The Constitution requires the State to protect marriage between a man and a woman with special care and to protect it against attack. The constitutional advice available to me (with which I agree) is that it is not open to the State to create by law a status for a relationship which has all the rights and duties of marriage under our law, but which is not a marriage in the sense recognised by the Constitution.

The All Party Committee on the Constitution in a recent report recommended "no change" in the constitutional definition of marriage and I have proceeded on the basis that no such change is contemplated or would succeed. It is my judgment, and that of the Taoiseach, that a referendum to change the status or meaning of the family in the Constitution would not only be defeated but would be extremely divisive and counter-productive at this point.

The civil partnership project, therefore, is based on the present constitutional context and would allow parties to such partnership freedom as to agree between themselves matters such as inheritance rights, next of kin rights, maintenance rights and duties for each of those and arrangements in relation to dependants which would, subject to the Constitution, be given legal recognition and be enforceable, if necessary, by the courts.

Other issues, such as the recognition of civil partnership from the point of view of taxation, pension entitlements and social welfare payments, would obviously arise. So too would the issues of termination of partnership and the rights of the parties where termination occurred.

To enable Government to consider the policy options, the Law Reform Commission and the Group on Domestic Partnerships, chaired by Anne Colley, have presented very useful papers on rights of co-habitants and on options for a civil partnership law.

I have made no secret of my broad approach to the issue of civil partnership and have consistently signalled that my intention was to generate proposals along these lines, so as to ensure as far as possible fairness for all unmarried co-habitants and their dependants, while respecting the constitutional status of marriage.

The Labour Party idea of a civil union, as distinct from my concept of civil partnerships, was confined to "conjugal relations" exclusively between persons of the same sex and provided that the parties to a union would "receive the benefit and protections and [ be] subject to the responsibilities of parties to a marriage".

The Labour Bill would create a relationship for gay people which differed only in name from marriage. No other relationship for co-habitants would be recognised under this Bill.

The Bill would also apply all our existing marriage laws of nullity, separation, divorce, child custody, maintenance, family homes and property to that relationship. For instance, the relationship could not be terminated by mutual consent until four years had elapsed during which the parties lived separately, and unless the court was satisfied that reconciliation was an impossibility. A gay couple who did not want such a marriage-type relationship would receive no recognition for any agreement between themselves short of such a union.

The Labour Bill also proposed to confer full adoption rights on gay parties to a civil union and, much more controversially, to oblige the State to consider such applicants for adoption on exactly the same basis as a married couple. The Bill would have outlawed any State policy in favour of giving preference to married heterosexual couples in the adoption system.

Moreover, the Attorney General has advised me that it would not be open to me to either make such proposals or to adopt them having regard to the provisions of the Constitution. Because I was advised that the central scheme of the Labour Bill was incompatible with the Constitution, and because it was not compatible with the civil partnership proposal on which I am working, I tabled the amendment postponing further consideration.

In addition, there is the question of the Zappone appeal currently pending before the Supreme Court. If Ms Zappone wins her case, there will be very clear implications for what it will be possible to do in relation to same-sex relationships in our domestic law. Conversely, if she loses her appeal, and depending on the reasons given by the Supreme Court, the meaning and implication of the constitutional protection for the family may well dictate the limits to which a civil partnership law may be developed.

Fintan O'Toole argued in response to John Kenny's letter to the Editor (February 28th) that the Zappone appeal and its outcome is irrelevant to acceptance of the Labour Party Bill. I profoundly disagree with that assertion.

All of the above considerations, especially the need to create space for comprehensive proposals for civil partners which, unlike the Labour Party Bill, would protect heterosexual, homosexual and non-sexual co-habiting relationships alike, strongly suggest to me that it would be a mistake and politically dishonest to accept the Labour Bill. It would be especially wrong to do so in the context of legal advice that the central scheme of the Labour Party Bill was unconstitutional.

Far from engaging in "sleeveenism" or equivocation, I regard it as my duty to approach proposals for legislation in this area in a manner that upholds the Constitution in spirit and in letter, and in a manner which attempts to do justice to all co-habitants.

Equality is not about the absence of difference. It is about fairness in dealing with difference.

Michael McDowell is Tánaiste and Minister for Justice, Equality and Law Reform

© 2007 The Irish Times

The_Minister

Thanks for putting that up. I wasn't able to get to the place till about four.

I really wish that he had been clearer, and had used simpler language. I understood what he was saying but many wouldn't.

Annasopra

Labour's civil union Bill would not stand up

Accepting the Bill would cause constitutional issues and be politically dishonest, writes Michael McDowell.

I have been taken to task for not accepting Labour's civil union Bill.

Agreed and rightly so!

The Dáil amended the second reading resolution to allow more time for a comprehensive civil partnership Bill to be brought before the House and to await the outcome of the Zappone appeal pending in the Supreme Court.

Now this is being hyprocitcal and politically dishonest - the bill was effectively guillotined and the Zappone judgement is not relevant

I have for the last two years taken steps to develop a legislative proposal for the recognition of "civil partnerships" between persons who are not married but who are co-habiting domestically in a long-term relationship of inter-dependency, whether that relationship is heterosexual, homosexual or non-sexual. The idea of civil partnerships is to enable the parties to engage in such relationships as to create between themselves, and between themselves and society, a recognised set of rights and duties in order to achieve functional fairness and equity. It is not to create a parallel system of statutory marriage.

Personally I think this is Crazy/Ridiculous/Complex/ 2 faced/arrogant and stupid - no-one (apart from McDowell) is clamouring for civil partnerships for 2 elderly brothers. The sitaution is this non married cohabiting couples can marry, gay couples can't - therefore gay couples should be given some form of parallel system. Non married cohabiting couples should be dealt with entirely separately. It would not be unconstutional to create a parallel system for gay couples. Creating Civil Partnerships where all differnt forms of partnerships can be recognised is hugely messy. What happens if a woman wants to dissolve her CP to her mother or register a CP with her ex husband? what happens with immigration cases - will civil partners be allowed to bring their other civil partner over

The Constitution requires the State to protect marriage between a man and a woman with special care and to protect it against attack.

No it doesn't

The constitutional advice available to me (with which I agree) is that it is not open to the State to create by law a status for a relationship which has all the rights and duties of marriage under our law, but which is not a marriage in the sense recognised by the Constitution.

The Law Reform commission and Anne Colleys report have clearly stated the opposite

The All Party Committee on the Constitution in a recent report recommended "no change" in the constitutional definition of marriage and I have proceeded on the basis that no such change is contemplated or would succeed. It is my judgment, and that of the Taoiseach, that a referendum to change the status or meaning of the family in the Constitution would not only be defeated but would be extremely divisive and counter-productive at this point.

Fair enough

The civil partnership project, therefore, is based on the present constitutional context and would allow parties to such partnership freedom as to agree between themselves matters such as inheritance rights, next of kin rights, maintenance rights and duties for each of those and arrangements in relation to dependants which would, subject to the Constitution, be given legal recognition and be enforceable, if necessary, by the courts.

His Project - his interpretation. His equating non married heterosexual cohabitnats with gay couples. - Load of crap

Other issues, such as the recognition of civil partnership from the point of view of taxation, pension entitlements and social welfare payments, would obviously arise. So too would the issues of termination of partnership and the rights of the parties where termination occurred.

See above - he's doing things in a far tto compliacted way

To enable Government to consider the policy options, the Law Reform Commission and the Group on Domestic Partnerships, chaired by Anne Colley, have presented very useful papers on rights of co-habitants and on options for a civil partnership law.

OK in my view the issues facing cohabitants and the issue facing gay couples are entirely separate

I have made no secret of my broad approach to the issue of civil partnership and have consistently signalled that my intention was to generate proposals along these lines, so as to ensure as far as possible fairness for all unmarried co-habitants and their dependants, while respecting the constitutional status of marriage.

Again this is equating those who cannot marry with those who choose not to

The Labour Party idea of a civil union, as distinct from my concept of civil partnerships, was confined to "conjugal relations" exclusively between persons of the same sex and provided that the parties to a union would "receive the benefit and protections and subject to the responsibilities of parties to a marriage".

That is the whole point!!!!!!!!!

The Labour Bill would create a relationship for gay people which differed only in name from marriage. No other relationship for co-habitants would be recognised under this Bill.

Okay again issues facing cohabitants are ENTIRELY separate

The Bill would also apply all our existing marriage laws of nullity, separation, divorce, child custody, maintenance, family homes and property to that relationship. For instance, the relationship could not be terminated by mutual consent until four years had elapsed during which the parties lived separately, and unless the court was satisfied that reconciliation was an impossibility. A gay couple who did not want such a marriage-type relationship would receive no recognition for any agreement between themselves short of such a union.

Equality is equality - surely gay people who want to marry realise that they would have to wait 4 years for a divorce. Cohabitation could be dealt with in an entirely separate manner

The Labour Bill also proposed to confer full adoption rights on gay parties to a civil union and, much more controversially, to oblige the State to consider such applicants for adoption on exactly the same basis as a married couple. The Bill would have outlawed any State policy in favour of giving preference to married heterosexual couples in the adoption system.

OK come on now this is being dishonest - the bill would have made sure that all adoptions that took place were in the best interests of the child

Moreover, the Attorney General has advised me that it would not be open to me to either make such proposals or to adopt them having regard to the provisions of the Constitution. Because I was advised that the central scheme of the Labour Bill was incompatible with the Constitution, and because it was not compatible with the civil partnership proposal on which I am working, I tabled the amendment postponing further consideration.

I'm sorry - this "unconstitutional advice is a load of crap" - Anne Colley and The Law Reform Commission have clearly stated this

In addition, there is the question of the Zappone appeal currently pending before the Supreme Court. If Ms Zappone wins her case, there will be very clear implications for what it will be possible to do in relation to same-sex relationships in our domestic law. Conversely, if she loses her appeal, and depending on the reasons given by the Supreme Court, the meaning and implication of the constitutional protection for the family may well dictate the limits to which a civil partnership law may be developed

Fintan O'Toole argued in response to John Kenny's letter to the Editor (February 28th) that the Zappone appeal and its outcome is irrelevant to acceptance of the Labour Party Bill. I profoundly disagree with that assertion.

I don't entirely see the relevance

All of the above considerations, especially the need to create space for comprehensive proposals for civil partners which, unlike the Labour Party Bill, would protect heterosexual, homosexual and non-sexual co-habiting relationships alike, strongly suggest to me that it would be a mistake and politically dishonest to accept the Labour Bill. It would be especially wrong to do so in the context of legal advice that the central scheme of the Labour Party Bill was unconstitutional.

Far from engaging in "sleeveenism" or equivocation, I regard it as my duty to approach proposals for legislation in this area in a manner that upholds the Constitution in spirit and in letter, and in a manner which attempts to do justice to all co-habitants.

Equality is not about the absence of difference. It is about fairness in dealing with difference.

Surely treating people who are not the same (ie straight non married cohabiting couples and same-sex couples) is inequality

The_Minister

Sorry, I should actually have posted this aswell, its a transcript of McDowell speech explaining his action. David Norris had it on his Blog: http://www.senatordavidnorris.ie/blogger/2005/02/reply-of-mr-michael-mcdowell-to-civil.htm.
This is a much better explanation, and answers several of the questions that you raised Johnnymcq.

Various Dail Deputies wrote:

Reply of Mr. Michael McDowell to Civil Partnership Bill 2004 Second Stage Debate

Reply by Minister for Justice, Equality and Law Reform to Senator David Norris’s Second Stage Speech during the Second Stage Debate on Civil Partnership Bill 2004 held on Wednesday the 16th of February 2005

Minister for Justice, Equality and Law Reform (Mr. M. McDowell): I pay tribute to Senator Norris for the work he has done in the past, and continues to do in this Bill, on the rights of cohabiting couples. This Bill, and the debate last May on the rights of non-marital and one-parent families, are valuable contributions to the development of policy in this important area.
I do not agree with Senator Ross's point that this is a simple matter and should be waved through. That is superficial and glib. Senator Terry's scriptwriter betrayed her by introducing a shallow and somewhat unfair note accusing people on this side of the House of being homophobic, hesitant and indecisive in the matter. We must be careful on this subject. Knowing Senator Terry as I do, I realise that her scriptwriter's vindictiveness is at fault not her own view in making a charge of homophobia.

Ms Terry: The views I expressed are mine.

Mr. M. McDowell: I regret that the Senator should charge anybody in this House with homophobia.

Ms Terry: I did not charge anyone, I questioned motives.

Mr. M. McDowell: I could say the same about Senator Terry and question her on the same point but it would be equally unjustified.
I acknowledge on behalf of the Government that the position before the law of same sex couples, and others in caring relationships, including extending State recognition to civil partnerships between such persons, needs to be addressed. We cannot walk away from, ignore or postpone this issue.
Society has changed greatly over recent decades and the law must be kept up to date with the needs of society while at the same time preserving all that is of value in what we have, and respecting the Constitution by which we all are bound. Anybody who sees a constitutional dimension in this issue should participate in the All-party Committee on the Constitution and not pretend that this issue can be dealt with on a non-constitutional level.
Senator Kett rightly identified two aspects of this Bill which cause difficulty. I agree with Senator Terry in that the analysis available to the Government is that section 6 is contrary to the Constitution and would be struck down by the courts. I acknowledge that, as Senator Norris says, the Law Reform Commission takes a different view but the advisers to Senator Terry and to the Government take the view that on a detailed analysis the proposal in this section is contrary to the Constitution.
Senator Kett's second point, with which I agree, is that this proposed legislation is restricted to "conjugal relations". Therefore two friends, or sisters, or any two people who have spent their lives together caring for one another and sharing their home are excluded by the language in section 3.
In the context of sexuality are two people who have a non-sexual relationship to be substantially discriminated against because theirs is a non-sexual relationship? If not, the definition of a civil partnership in section 3, which makes a sexual conjugal relationship a necessary precondition for a civil partnership, is discriminatory. We must consider this carefully. These are two points of principle and not of conservatism. They have a significant import. Are we creating a new set of relationships based on a sexual underpinning or are we willing to accord civil partnership status to people who have no sexual relationship?

Mr. Norris: Sexual and conjugal are not coterminous.

Mr. M. McDowell: I do not know what the term "conjugal" means in that context if it is not designed to mean something akin to sexual in nature. I do not think two elderly bachelors living in a farmhouse in County Kerry would regard their relationship as conjugal, even if they were fully committed to looking after each other.

Mr. Norris: If they were in Kerry they certainly would.

Mr. Coghlan: God forbid that they would split up.

Mr. M. McDowell: In these two sections, which are not simply details but central issues in the Bill, there are major constitutional, philosophical and discriminatory issues to be addressed.
Irish law already takes into account in a number of ways non-marital relationships. As referred to earlier, capital acquisitions tax has been changed. The Guardianship of Infants Act, as amended, provides for the appointment of unmarried fathers as guardians of their children in certain circumstances. The Domestic Violence Act 1996 also covers non-marital relationships.
The needs of cohabiting couples, many of whom want to share property, home life, income, and perhaps deferred income in the form of pensions, and those who want to care for each other and be cared for in that context in a next-of-kin hospital situation and so on, require legal protection and are imminently suitable for legal reform. As a society, we must give thorough consideration to what course we can and should follow in this very sensitive area. We must decide what we are trying to achieve. For example, do we want to focus on particular rights of importance to cohabiting couples, which should be given the protection of law or do we want to give cohabiting couples a status equivalent to marriage, as proposed in section 6 of the Bill? Extending some State recognition to partnerships between persons who decide to create a relationship of mutual dependence, care and love between themselves, whether the relationship is heterosexual, homosexual or non-sexual, is qualitatively different from the alternative course, which is providing a status equivalent to, and attracting the same rights and entitlements as conventional marriage which is up to now a status based on a male-female monogamous relationship for the duration of the life of the marriage.
Heterosexual couples currently have the option of marriage open to them. We must ask ourselves what it is about marriage that is causing many heterosexual couples to say "No thanks". Why will they not avail of all these extra rights in terms of pension, property, tax and social welfare? What is holding these people back from saying "no" in this regard? While I am not in a position to offer a comprehensive answer to that question now, it must be addressed. It might raise the question that there are obligations going with marriage, which they are reluctant to undertake. Senator Terry put her finger on the point when she criticised the Bill - even though it is a criticism I would not share in regard to civil partnerships - on the basis that the dissolution provisions are a good deal more lenient than those which currently apply to marriage. If a civil partnership, which has all the attendant rights of marriage, has a let out of six weeks or whatever while marriage under the Constitution cannot be dissolved except under the four year provision, if one is talking about heterosexual cohabitants, one must ask whether it is marriage life that is on offer here, identical in terms of all the rights but different in terms of the fundamental obligations and duties. This is a question which will not go away. I am making that point because we must be honest with each other. I note that section 6 does not mention duties except, by inference, mutual duties. If one is suggesting a relationship which has all the entitlements and rights, but none of the obligations, except in so far as they are bound up in mutual rights, then one is clearly in danger of infringing the constitutional provisions for the protection of marriage. This is giving everyone all the advantages of marriage while discouraging them from undertaking any of the onerous responsibilities.
Heterosexual couples have the option of marriage open to them. If we are to offer them something with all the rights and entitlements of a valid marriage, it should also have the same duties attaching to it. I am one of the few politicians who is prepared to say that in this rights culture in which we live, no right is worth a damn without a co-relative duty. That was taught to me by a former Member of this and the other House, the late John Maurice Kelly, in jurisprudence classes in UCD. Rights without duties are meaningless. They are the stuff of which Soviet constitutions are made but they are nothing unless there are attendant duties.

Mr. Dardis: Even the Jesuits and Dominicans can agree on that.

Mr. M. McDowell: Someone must accord the corresponding duty to every right. The point I am making in regard to this issue is that marriage as envisaged by the Constitution is not simply a basket of rights. It is in explicit terms stated to be a relationship which carries with it profound duties.
Section 6, in effect, would mean marriage, albeit by another name. It is doubtful whether there are any advantages to providing in law for an institution for heterosexual couples which mirrors marriage to that extent. I agree that the situation is different for homosexual couples, for whom marriage is prohibited at the moment. I want to take this opportunity to put it on the record of this House that the Government is unequivocally in favour of treating gay people as fully equal citizens in our society. That is why the Government parties, and all parties in the House, concurred on the decriminalisation of homosexuality. We passed other equality legislation on sexual orientation to ensure that people cannot be discriminated against on the basis of their sexuality.
Many same-sex couples may not want an institution which gives them all the rights, entitlements and duties of marriage. They may want a form of civil partnership which protects certain rights of importance to them. People may not want to enter into a life-long relationship but something short of that. It is worthwhile remembering that there are people who simply have a platonic relationship, to which there is no sexual dimension, who may want their home, pension, tax, welfare, inheritance rights, rights of next-of-kin in regard to each other in the case of illness and the like, capable of some form of recognition.
In November 2004, the Taoiseach, in response to a question concerning gay marriage, emphasised the importance of dealing with the situation of same-sex couples and of rational debate on the issue. He said that we should not get the question of marriage mixed up with the many inequalities and unfairness - he used the phrase "we are making their situation fairer" - such people face. He advocated trying to deal with these issues on the basis of what people have to surmount in their daily lives.
Dr. Diarmuid Martin, the Catholic Archbishop of Dublin, to whom Senator Norris paid tribute, stated:
I recognise that there are many different kinds of caring relationship and these often create dependencies for those involved. The State may feel, in justice, that the rights of people in these relationships need to be protected.
There is no huge difference between us philosophically on this issue.
We need also to consider the position of people whose relationship has no sexual element and who may need legal protection and recognition for what is de facto a relationship based on a community of property or income, which flows from a caring relationship between them.

[Mr. McDowell]
All of these needs must be considered. The Government believes that if significant social change is to take place, and it is taking place - the Government does not like King Canute stop social change - it must have a fairly broad measure of support across society.
I compliment Senator Norris on including heterosexual couples as well as homosexual couples in the scope of this Bill because it makes sense from the perspective of fairness and equality to expand the debate to include others in caring relationships. I go one stage further and say we should also deal with non-sexual people in a relationship of caring and dependency.
A major problem arises in section 6. I made the point that Article 41.3.1o of the Constitution provides that 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. The advices available to me are that this article precludes the State from doing what section 6 purports to do, namely, equating the institution of marriage with other forms of relationship or partnership which do not carry the attendant obligations.
There are also problems of a legal and technical nature, of which the following are examples. The Bill does not contain an explicit list of rights and entitlements. Any Bill creating a new civil partnership institution would have to include a list of those rights and entitlements. The rights of parties to a valid marriage are complex and are not contained or to be found in any single instrument. They derive from the Constitution at one level, from statute law and from common law as interpreted by the courts. The question is precisely what is meant by the reference to the Family Law Act of 1995. This question is fundamentally important because the Act of 1995 does not, for example, extend to the validity of a marriage, neither does it provide for the types of rights referred to in the explanatory memorandum to this Bill.
The Bill also lacks provision in regard to duties. In this context, it must be borne in mind that marriage is not simply a series of rights, although it may seem that way, I fully acknowledge, to people who are kept out of it and who feel they are being denied those rights. Marriage - the same would have to apply to any new institution which would mirror it - is a complex of duties. Married people owe each other many judicially enforceable duties such as a duty of maintenance and a special duty in respect of a home used by them. If two people in a marriage use a place as their home, it becomes subject automatically and by operation of law to the Family Home Protection Act. Married people owe each other many other judicially enforceable duties such as the question of bigamy and competence as a witness. A married person is not competent to testify against a spouse. There are other issues such as privilege, divorce, judicial competence over capital assets and dividing up the assets of the persons. A few years ago this was not a matter of great importance but now it is. In family law cases major decisions can be made involving millions of euro being divided this way and that between the parties by the courts. This Bill is silent on these matters. Section 6 states that civil partners shall be regarded as having the same rights as parties to a marriage.
From a liberal perspective, it is not liberal to say that the only basis on which gay couples or a non-sexual couple can make arrangements for their next-of-kin status and the like is if they agree to a relationship which has all the incidents of marriage. We should think of this in a more long-term way and from a liberal perspective and ask ourselves whether this Bill would be fair to those who simply want to make some arrangements for their lives without making all the arrangements which marriage carries in its train.
In pointing out these matters, it is my intention, on behalf of the Government, to be helpful rather than negative. I hope Senator Norris accepts that. These are complex issues. If, as it appears, the Bill is an attempt to be comprehensive, it is not achieving its purpose. If it is an exercise in liberalism, and I know the Senator would regard it as such, it is not liberal if it indicates to couples who want to avail of a civil partnership that the only basis on which they can do that is by undertaking all the rights and incidents of marriage under our Constitution, statute law and common law.
The Bill does not deal with children's issues adequately, with which Senator Terry agrees. Sections 13 and 14 on foreign civil partnerships is generous but probably not in accordance with the Constitution and does not address issues such as the potential for fraud or the wide disparity between the laws of foreign jurisdictions.
The proposals in the Bill would have extensive implications for tax, welfare and civil legislation. Tax accruing to the State in the area of income tax, capital acquisitions tax and the like would be affected. I agree with Senator Norris that the mere fact that something can cost money to the Exchequer is not a reason, as we know today from consideration of the Article 26 reference, for putting into our law something which is unfair or for keeping it there. However, we have to think long and hard about whether our tax system could survive if generalisation of its provisions extended to everyone in society including two elderly farmers in Kerry who, because they care for each other, are entitled to be regarded as a family and to get double tax allowances. We have to think long and hard about that as a proposition and we might find the result would be that we would have to dismantle the present tax system, which is remarkably pro-family.
Notwithstanding the shortcomings of the Bill, I wish to make a final point because I am aware I am trespassing on the House's time. It is most emphatically not the case, as Senator Terry seemed to suggest, that those on this side of the House decided to try to derail this Bill today. I record that in the days leading up to this debate every means was sought to avoid voting down this Bill. I am glad Senator Norris, the Leader of the House and other Senators have come to an agreement whereby that will not be the outcome of this evening's proceedings. It was most emphatically not the purpose of the Government to vote down this Bill, sabotage or derail it, or to say that the issues covered in it are too complex to merit early consideration. That is emphatically not the Government's position.
We must emphatically reject the simplistic argument offered to us by Senator Ross that the merit of this Bill is so blindingly obvious that there should not even be a debate on it and that it should be nodded through. In the name of all that is good, that remark simply does not stand up to even a ten second scrutiny. I am sorry to say that in the absence of Senator Ross; I would have preferred to say it to his face. This Bill is not something which should be nodded through. It is not self-evidently so compelling in its terms as to merit no further debate; the exact opposite is the case. This Bill is a legitimate effort to counter unfairness and hurt for many people in Irish society and I accept it in that spirit.
The Bill is not something which could be pushed through on the nod or accepted uncritically; it must be teased out. Of course it is of interest whether the Supreme Court rules that two gay people who are married abroad can have their marriage recognised here, as is now being ventilated in the courts. If the courts decide that is the case, many of the issues in terms of the Law Reform Commission's view of the world and the one shared by my legal advisers and Senator Terry would disappear.
It is relevant whether we are content in future to have family rights restricted under the Constitution to unit groups in society based on matrimony, which is the issue being decided on currently by the All-Party Committee on the Constitution. It is also right that we should wait for the Law Reform Commission to report on its consultative paper on the rights and duties of cohabitants. It uses the horrible phrase "cohabitees" and I do not know from where they got that phrase; "cohabitants" is the one I would use. We should wait and see what some of these issues are. The Law Reform Commission, when it gets wind of the contrary legal advice of at least two parties in this House, might take a second look at this and acknowledge there is perhaps more to this than meets the eye.
I have great pleasure in saying it is not true that the Government panicked and tried to derail this process. The Government set out, and I am sure the Leader will confirm this in her contribution, that our definite priority in this matter was not to divide the House but to come to some arrangement that would accommodate this Bill as a meritorious assay in this area without defeating it because of the issues that I have raised. Therefore, I am grateful to Members of the House for allowing me to participate in this debate. This Bill is very important and the areas it covers cannot be deferred for another generation or another Parliament to consider. This is an issue for us to consider now, but that does not mean that we can commit the sin dangled in front of our noses by Senator Ross of nodding through something as important as this without looking around at least a few corners.

Annasopra

Here's the letter that appeared in today's TImes.

MCDOWELL AND CIVIL UNION BILL
Madam, - Justice Minister, Michael McDowell claims (Opinion & Analysis, March 2nd) that the Dáil amended the second reading resolution of Labour's civil union Bill "to allow more time for a comprehensive civil partnership Bill to be brought before the House and to await the outcome of the Zappone appeal pending in the Supreme Court".

In fact the Government motion adjourned the second reading for six months - which is well after the statutory limit for a general election. The Government took this line knowing that all Bills must lapse when the Dáil is dissolved and a general election is called.

I would have more respect for the Minister if he had had the courage to vote down our Bill in a direct way rather than engage in this sort of smart-alec manoeuvre, designed to present a sympathetic face while killing off a measure his Government fiercely opposes.

In his article the Minister consistently muddies the waters by referring to an entirely separate issue: whether or not there should be a "civil partnership" system in our laws for persons who are not married but who are cohabiting domestically in a long-term relationship of inter-dependency.

The issue is entirely separate because cohabitation in the context of a heterosexual relationship is voluntary. A heterosexual couple could get married but decide not to. This raises issues as to the sort of recognition the law should provide for a relationship falling short of marriage that is entered into by people who have the option but reject it.

These issues deserve consideration but they were not the subject matter of my Bill, which was specifically concerned with a group of people who are constitutionally disabled from marrying.

To insist, as Michael McDowell does, on a common framework for all cohabitants is to ignore the particular unfairness imposed on people who want to do more than cohabit but who are prevented from marrying each other.

It seems the Minister still cannot see and appreciate that point. His approach is still to bundle together same-sex couples - who are not married because they cannot marry - with those couples for whom cohabitation is a matter of lifestyle choice. His approach is ignorant, patronising and blinkered.

The Minister has also claimed that our Bill attempted to pre-empt the Supreme Court decision in the appeal in the Zappone/Gilligan case. But that case is not about whether it would be unconstitutional to change the law so as to give recognition or status to foreign same-sex marriages. That case is about whether the Constitution and the law, as they at present stand, require the State to recognise a same-sex marriage celebrated a few years ago in Canada.

Our Bill, of course, was concerned with what the law will be after it is passed, rather than what it is now, and it had no impact on the issues in the Zappone/Gilligan case.

Finally, the Minister points out that the Constitution requires the State to protect marriage with special care and to protect it against attack. He says it is not open to the State to create a status for a relationship which has all the rights and duties of marriage but which is not a marriage in the sense recognised by the Constitution.

Presumably the Minister is not arguing that those of a homosexual orientation should reconcile themselves to the married state? Or that offering civil union for same-sex couples would lure heterosexuals away from marriage? If he is not saying that, on what conceivable basis is he arguing that making specific provision for same-sex couples has any effect whatsoever on an institution that is at present confined to couples of opposite sexes?

Labour's Bill contained within it one single over-riding principle - the principle of equality. This principle is unquenchable and undeniable. It is founded on the bond of our common humanity. It is based on our recognition in each other of an essential shared human experience. Our shared humanity is far greater than any difference in how we look, how we pray, what our capabilities are, or how we choose a partner in life.

As Dr Martin Luther King said on that famous day when he proclaimed his dream of equality, he had come to remind us of "the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquillising drug of gradualism".

Minister Michael McDowell took the tranquillising drug. For all the grandeur of his title, he decided to defeat a basic matter of justice, equality and law reform. I repeat that his postponement of our Bill was not a vote for delay: it was a vote to defeat the Bill. It is for the victims of that defeat to decide who was responsible and what they should do next. - Yours, etc,

BRENDAN HOWLIN TD, Labour Party Spokesperson on Justice, Dáil Éireann.