How does state justify Prohibition on Gay Marriage

Hogzy

Hey guys need help with an assignment i have for college

I have lots of articles in which i must read however im brainstorming at the mo and need a little help...

Can you tell me how:
The state justifies the prohibition of Homosexual and Transexual marriage?

Cheers for any input!

Edit: I know alot of this stuff was decided in the Zappone Gilligan case so it would be handy if someone could give me a rough overview of the judgement in that case because i know it failed but i dont know why exactly!

vote4pedro

The Consitution affords a special protection to marriage between man and a woman. Placing other relationships on the same pedastel as heterosexual marriage would mean this "special" protection is now less special and unique, so any law doing so would be unconstitutional. Therefore if the State wants to legalise gay marriage, it will need to put a referendum to the people and it will be for the people to decide a rewording of the Constitution to either get rid of the special protection for marriage, or amend it to include a special protection for marriage whether it be homosexual or heterosexual.

Jim_Are_Great

Edit: What he said.^

Zappone and Gilligan's case failed (for now) on several grounds. Principally the judge defined "marriage" as it was understood in 1937, and denied the arguments on Z&G's behalf that an updated view should be applied due to the change in the general social consensus towards gay marriage. The decision has been appealed. Here's the text of the High Court decision.

Gay marriage in general is legally disallowed mainly due to article 41 of the constitution, which protects marriage. This guarantee of marriage was defined in loads of cases over the years as being between a man and a woman, which obviously precludes other types of marriage.

Hogzy

Thanks guys for the info!!!

In relation to the civil partnership bill is there anything stopping that coming into force this June?
I know it explicitly states that cohabiting couples is to be interpreted as two adults whether homosexual or not!
I havnt read the bill yet but i presume it doesnt give right to full civil marriage but only cohabiting rights... Is this wrong or right?

Jim_Are_Great

Hogzy wrote: »

In relation to the civil partnership bill is there anything stopping that coming into force this June?

If its constitutionality is challenged or it's presidentially referred, it's not certain that it will be upheld. The law is pretty clear in that marriage is governed by the constitution. The court could easily decide that it can't be affected by statute, and will need a referendum.

r14

Hogzy wrote: »

In relation to the civil partnership bill is there anything stopping that coming into force this June?

Only thing stopping it is that the Government are dragging their feet on it. As far as I know they have been very careful to make clear that civil partnership is a poor cousin of marriage to ensure that it doesn't conflict with Art 41.

Once again it can be challenged in court but given how shaky our law is under ECHR I think they have taken time to make it challenge proof.

kathy2

no chance of any children

Jim_Are_Great

kathy2 wrote: »

no chance of any children

Are you making a legal point or asking a favour?

Hogzy

One more question...

What would be an example of a reason for attaining a court exemption order for the capacity to marry if one is under 18yo?

Our man in Havana

No chance. The min age for marriage is specified by statute.

Hogzy

http://www.citizensinformation.ie/categories/birth-family-relationships/getting-married/age_requirements_for_marriage

This states that an exemption order can be sought?

Quaver

Bond-007 wrote: »

No chance. The min age for marriage is specified by statute.

Wrong, you can get an exemption. As far as I know, it's pretty much decided on a case by case basis. It doesn't happen that often.

Jim_Are_Great

Hogzy wrote: »

One more question...

What would be an example of a reason for attaining a court exemption order for the capacity to marry if one is under 18yo?

I honestly am not sure. I imagine if some religious ground existed it would be faciltated, though.

Our man in Havana

One party sufffering a terminal illness, and unlikley to make it to 18.

Hogzy

Bond-007 wrote: »

One party sufffering a terminal illness, and unlikley to make it to 18.

Do you know of any case to back that up or is it off the top of your head???

I heard that members of the traveling community can avail of the exemption?dunno if thats true either tho as iv nothing to back it up!

Our man in Havana

I know of one case where one person was dying and an exemption was granted.

_JOE_

Hogzy wrote: »

Do you know of any case to back that up or is it off the top of your head???

I heard that members of the traveling community can avail of the exemption?dunno if thats true either tho as iv nothing to back it up!

The age requirement of 18 was introduced by the Family law act 1995, section 31, and is declared a substantive requirement. However a marriage will not be declated void for lack of age where judicial exemption from the requirement has been obtained under the 95 Act, s 33, before the marriage occurs...

Hope that clears things up...

Hogzy

_JOE_ wrote: »

The age requirement of 18 was introduced by the Family law act 1995, section 31, and is declared a substantive requirement. However a marriage will not be declated void for lack of age where judicial exemption from the requirement has been obtained under the 95 Act, s 33, before the marriage occurs...

Hope that clears things up...

Not really i want to kno what constitutes such judicial exemption?

Dandelion6

Hogzy wrote: »

In relation to the civil partnership bill is there anything stopping that coming into force this June?

Well the fact that it hasn't even been published yet, much less approved by the Oireachtas, would be a minor hindrance.

I havnt read the bill yet but i presume it doesnt give right to full civil marriage but only cohabiting rights... Is this wrong or right?

In the heads of the bill, which were published last year, there is no right to marriage but there is a right to a declaration of civil partnership (once certain conditions are fulfilled) which amount to fairly extensive rights beyond what cohabiting couples have now. There's a fair amount of legislation where "spouses" will be amended to read "spouses or civil partners" or words to that effect, such as the Family Home Protection Act.

I think you can be pretty certain that if it ever is enacted the likes of the Iona Institute or the Men's Council or the latest incarnation of Youth Defence will try to challenge it on the basis that it gives a non-marital relationship parity with marriage. Whether or not they'll succeed is another matter but there is certainly enough in the heads of the bill for them to work with.

Of course there is always the possibility that a more enlightened court will reverse years of precedent and say, Well actually, the Constitution doesn't define marriage as between a man and a woman (which it doesn't), although that's probably not likely in the near future.