Homosexual Marraige.

Iwasfrozen

Article 41 P3,1* wrote:

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.

Does this text mean a referendum on the proposed Civil partnership law is required ? Of course there are many ways to interpret the passage but I for one would like to see a referendum on the possibility of full Gay marriage rather than a half-assed civil partnership bill.
We have only just come out of 60 years of neo-socialist Catholic propoganda and what better way to flex our newly found freedom of thought than a frank and fair debate on such a controversial movement ?

So my question is: Based on the constitutions text, would a referendum be required to introduce full Homosexual marraige with all the rights of Hetrosexual couples ?

Our man in Havana

Yes, an amendment would be needed, hence why they are going down the civil partnership road.

Thirdfox

I would be of the opinion yes - as the family is specifically mentioned.

In places like Canada where the definition of marriage had no links to family judges were able to opine that marriage does not root itself in family and that a homosexual marriage is just as valid as a heterosexual one. Judges here would be much less likely to adopt the same view as family is explicitly mentioned in our Constitution.

I would love a frank debate on what the meaning of marriage is in today's society. Though I must admit I'm of the opinion that a family focused marriage system is important (and civil partnerships for both hetero and homosexuals who don't want a family).

But politics aside, answering your question, I'd think that a referendum would be needed either to a) remove "family" from that definition or b) define family as either hetero or homosexual in nature, before homosexual marriage can be brought into law.

McCrack

The Constitution only recognises family founded on marriage which at present means between a man and woman. A Referendum would most certainly be needed to include same-sex couples in the definition of 'family' as would I suspect the non-marital family (two people with children living together as a couple).

Dandelion6

It's quite possible to read the Constitution in such a way as to allow gay marriage. After all, "marriage" is nowhere defined in it to apply only to heterosexual couples. But it doesn't look as though the Courts are going to read it that way, if the High Court decision in the Zappone case is upheld.

Even the civil partnership legislation, if it ever actually becomes law (frankly I think FF are going to drag it out for as long as they can) potentially is open to challenge for creating a status equivalent to marriage. I can totally see the likes of Youth Defence finding someone whose inheritance was reduced because their parent's civil partner received a LRS and paying for them to bring a case. They mightn't win that case of course but there's no way the nuclear family fetishists in this country are going to just sit back and accept legal recognition of gay unions.

seamus

Dandelion6 wrote: »

It's quite possible to read the Constitution in such a way as to allow gay marriage. After all, "marriage" is nowhere defined in it to apply only to heterosexual couples. But it doesn't look as though the Courts are going to read it that way, if the High Court decision in the Zappone case is upheld.

The problem with constitutional law, as was pointed out to me (I think on this forum) is that the document should not be interpreted on today's standards. It must interpreted in terms of the intention of the people who wrote it at the time. This is how the courts look at it.

So if you consider that context, then it's blatantly clear that the article would consider "family" to be a man, a woman and their children. It was a very different time - the definition of "family" in recent times has changed dramatically and it is now generally used to refer to a parent (or two), their children as well as the parents' parents and siblings. When the constitution was written, this concept of family wasn't really in use, let alone the idea that two unrelated people of the same sex could constitute a family.

This is why a constitutional amendment is required to either clarify the defintion of a family, or simply remove that article completely and separate the concept of marriage from the concept of family.

The latter would be the much cleaner solution as it would prevent any future legal or constitutional arguments over the "family" issue.

Even the civil partnership legislation, if it ever actually becomes law (frankly I think FF are going to drag it out for as long as they can) potentially is open to challenge for creating a status equivalent to marriage. I can totally see the likes of Youth Defence finding someone whose inheritance was reduced because their parent's civil partner received a LRS and paying for them to bring a case. They mightn't win that case of course but there's no way the nuclear family fetishists in this country are going to just sit back and accept legal recognition of gay unions.

There aren't enough of them and they don't have enough power. The wider public (those between 18 and 50) are now very accepting of homosexuality and the vast majority of them either have gay relations or otherwise know homosexual people in stable relationships and realise that it's just another partnership of two people. The notion of gay people being swinging sexual deviants is very quickly leaving and I can't see the public at large having much of an issue with these people simply being able to "register" their unions to avail of tax and inheritance rights.

Baby steps, however. There's absolutely no way a constitutional amendment on this issue would go through right now. Many people are still skeptical at the morality of having two homosexual parents raising a child and having the same rights to raise a child as a heterosexual couple and are concerned about the quality of the upbringing the child may have - not that gay people are less "capable" but that by and large the parenting process has always been a male role model and a female role model, and often children lacking either role model do end up with difficulties in later life.

I can't see a constituional amendment on this succeeding for at least 20 or 30 years. The bills on civil unions is a massive step forward and a necessary stepping stone towards full marriage rights and should be seen as such.

Dandelion6

seamus wrote: »

The problem with constitutional law, as was pointed out to me (I think on this forum) is that the document should not be interpreted on today's standards. It must interpreted in terms of the intention of the people who wrote it at the time. This is how the courts look at it.

Original intent is only one method of interpretation. It is absolutely not the case that the courts "must" use that method. If it was, the McGee decision could not have happened, because the original intent of the authors of the 1937 Constitution was pretty clearly not that it would protect the right to use contraception within marriage - otherwise they would have repealed the law they'd passed just two years earlier banning all contraceptive use. In that decision, in fact, the Court specifically rejected the idea that the Constitution had to be interpreted the way it would have been in 1937.

Zappone could have gone either way, and still could when the Supreme Court hears the appeal. I agree it's probably unlikely they'll reverse but it's not completely unthinkable.

There aren't enough of them and they don't have enough power. The wider public (those between 18 and 50) are now very accepting of homosexuality and the vast majority of them either have gay relations or otherwise know homosexual people in stable relationships and realise that it's just another partnership of two people. The notion of gay people being swinging sexual deviants is very quickly leaving and I can't see the public at large having much of an issue with these people simply being able to "register" their unions to avail of tax and inheritance rights.

But the question is whether the courts will have an issue with it. If they think it creates an unconstitutional marriage-like status they have to oppose it whatever public opinion says. I would guess they would allow it, but you can never be sure. There was a decision a few months ago (name escapes me at the moment) overturning a property adjustment order that had been made in favour of a non-marital child. The public these days aren't too fussed about non-marital children either but the court still found the order was prohibited because of the privileged status of marriage.

The bills on civil unions is a massive step forward and a necessary stepping stone towards full marriage rights and should be seen as such.

I am not sure it is going to be that, but I agree it's necessary if only because of the absence of any other protections for gay and unmarried couples.

mountainyman

Who would have standing to challenge the proposed legislation on constitutional grounds?

MM

Our man in Havana

Any citizen I would think.

Victor

seamus wrote: »

So if you consider that context, then it's blatantly clear that the article would consider "family" to be a man, a woman and their children.

Why can't the family have been interpreted as one or more adults with one or more of their children? Does the death of a spouse end a family?

Dandelion6

mountainyman wrote: »

Who would have standing to challenge the proposed legislation on constitutional grounds?

Well I gave an example above, the child of someone whose same sex partner received a LRS thus reducing the amount of the child's inheritance.

But the courts have been fairly generous with the locus standi in recent years so you might not even need that.

the_wheel_turns

There is no doubt a constitutional amendment would be required.

It is unclear, at this time, whether or not these 'civil partnerships' would have any actual basis in Law. The Courts have recently seemed to suggest not.

mountainyman wrote: »

Who would have standing to challenge the proposed legislation on constitutional grounds?

MM

No person has legal standing to challenge proposed legislation, except the President, but that's not really legal standing per se. The Bill must first be signed into Law and then any citizen, provided they can prove they are affected by the Bill's provisions, may ask the High Court to strike down the Act, or part thereof, as repugnant to the Constitution.

Such cases are extremely rare and judges are, in general, weary of striking down legislation, especially that which has only recently been passed. Only a small number of these rare cases succeed.

shoegirl

mountainyman wrote: »

Who would have standing to challenge the proposed legislation on constitutional grounds?

Anybody with the money to hire a legal team on which to do so, mostly likely a married person who feels their status is "threatened".

Remember Libertas? They haven't gone away you know.

the_wheel_turns

shoegirl wrote: »

Anybody with the money to hire a legal team on which to do so, mostly likely a married person who feels their status is "threatened".

Remember Libertas? They haven't gone away you know.

Again, you don't have standing to challenge proposed legislation. See post above ^.

Libertas - no, they haven't gone away. They just seem to have manifested themselves into a political party, which, I have no doubt, was the reason they so vehemently and publicly opposed issues like Lisbon, etc.: to make a name for themselves. It's sick, and a total abuse of the system and the Nation.