Constitutional referendum and gay adoption?

stephen_n

Maybe I'm reading it wrongly (Hopefuly so) but does this referendum not lend weight to marriage as a definition of the family unit. In doing so it would seem to make it more difficult for gay people to adopt and further undermine CP?

L.Jenkins

Is that the referendum on Childrens rights?

Annasopra

stephen_n wrote: »

Maybe I'm reading it wrongly (Hopefuly so) but does this referendum not lend weight to marriage as a definition of the family unit. In doing so it would seem to make it more difficult for gay people to adopt and further undermine CP?

That wouldn't be my reading of it at all. Could you explain more?

stephen_n

The family article 41
1. 1* The state recognizes the family as the natural primary and fundemental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2* The state, therefore, guarantees to protect the family in its constitution and authority, as the necessary basis of social order and as indespensable to the welfare of the nation state.

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!

Annasopra

I still don't understand your point. This is the proposed wording.

PROPOSED NEW ARTICLE 42A
Children
The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.
Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
1° Provision shall be made by law that in the resolution of all proceedings-

i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or

ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

L.Jenkins

stephen_n wrote: »

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!

You're worried that if the new Constitutional Ammendent to enforce new law protecting children, which also takes into account the institution of marriage, would hinder the LGBTs campaign for Marriage Equality and the right to adopt as a couple?

dathi

articles 40 41 ,and 42 are already in the constitution these articles deal with the states relationship with the "family unit" the referendum wants you to remove one section in article 42 (42.5) and replace it with a new section which will allow more rights to the child when decisions are being made about there future ie. been taken into care adoption etc.

stephen_n

Itzy wrote: »

You're worried that if the new Constitutional Ammendent to enforce new law protecting children, which also takes into account the institution of marriage, would hinder the LGBTs campaign for Marriage Equality and the right to adopt as a couple?

Yes basically but not solely the right to adopt as I'm not sure that will change at all but more so further undermine the rights of gay partners. As in that it now underscores the "married" family as sacrosanct as opposed to civil partnerships. I'm not saying this is the effect as much as asking what others think.

Mango what I posted is a direct copy from the referendum commissions pamphlet.

28064212

stephen_n wrote: »

Mango what I posted is a direct copy from the referendum commissions pamphlet.

But article 41 is already in the constitution. If the referendum is passed, 42.5 (below) will be removed, and 42A (what mango posted) will be added. Article 41 is not affected at all.

If anything, it strengthens the case for gay adoption. 42A.4.1(ii) reads:

Provision shall be made by law that in the resolution of all proceedings [...] concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

Conceivably, if it is in the best interests of the child that it be placed with a gay couple, a case could be taken on that basis

42.5:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

Annasopra

stephen_n wrote: »

Yes basically but not solely the right to adopt as I'm not sure that will change at all but more so further undermine the rights of gay partners. As in that it now underscores the "married" family as sacrosanct as opposed to civil partnerships. I'm not saying this is the effect as much as asking what others think.

Mango what I posted is a direct copy from the referendum commissions pamphlet.

This referendum does not change anything with regard to marriage. Article 41 already exists in the constitution. It's not the case that the constitutional wording you are posting above is new. It's already there.

stephen_n

Ah ok didn't realise that was the current wording, not sure why they put it in the information leaflet if it's unaffected. Thanks for the replies!

floggg

stephen_n wrote: »

The family article 41
1. 1* The state recognizes the family as the natural primary and fundemental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2* The state, therefore, guarantees to protect the family in its constitution and authority, as the necessary basis of social order and as indespensable to the welfare of the nation state.

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!

As has already been noted, the quoted provisions are already in the Constitution.

The word "marriage" is not defined in the Constitution, so arguably this provision does not in any way prohibit marriage equality.

This point has been considered in the KAL case, though many seem to have misconstrued the judgment as finding there was a constitutional impediment to marriage equality. This was not actually the case.

What the High Court actually did was to consider the meaning of the word "marriage" at the time the High Court case was originally decided and tried to determine whether it should necessarily include same sex marriage.

That was in 2006. The High Court found that the meaning of the term marriage was evolving - but had not evolved to the point where it was commonly understood in Ireland as covering same sex marriage. In reaching this conclusion, they looked at the Irish legal definition of marriage (introduced in only 2003 as being between a man and a woman), the common dictionaries (i think), and the position in other countries.

They recognised that internationally a small number of jurisdictions had allowed for same sex marriage, but at the time you could count them on one hand and it wasn't enough to conclude that the term was not understood as covering same sex marriage.

Interestingly, they also looked to the Irish legislation to help interprete the constitution (normally its the other way around). The found that as the Oireachtas had chosen to define marriage as one man one woman, this was persuausive as to its meaning in Ireland.

This was at a time before Civil Partnership was introduced, and before countries like Denmark, Netherlands, Spain, Brazil,and some US States introduced marriage equality. Now, with the increase in countries recognising marriage equality, and plans for UK, Scotland, France etc to introduce it, as well as opinion polls in Ireland consistently showing a majority in favour, the conclusions reached could be different. In fact, even the dictionary defintion has now been changed in many cases to cover same sex marriage as well as opposite sex marriage.

More interestingly, by looking at the Irish legislation to help define the scope of the term, the judgment suggests that if the Oireachtas simply passed a law defining marriage as between two consenting adults regardless of gender or sex, then as a matter of Irish law marriage would mean just that.

Far from suggesting there is a constitutional prohibition, it implicitly finds there is none in my opinion.

Of course, whether this approach would be followed by the Supreme Court remains to be seen. The approach of interpreting the constitution by reference to legislation was very unorthodox and contrary to most norms of constitutional interpretation, so it is questionable whether this approach would necessarily be followed.

But I do think if it considered the issue, the Supreme Court would have to look at the general consensus as to the meaning of the term marriage, which has certainly moved towards including same sex marriage.

Aurongroove

I know someone Who's voting no because they said voting yes would open the door to same sex couples adopting.

L.Jenkins

Aurongroove wrote: »

I know someone Who's voting no because they said voting yes would open the door to same sex couples adopting.

So they want to deny children adequate protections from neglect, domestic violence/abuse and unfit parenting to ensure that a group of people within Irish society can not adopt as a couple. I'm sorry, but there is no description I can use for such a person that is polite and completely thorough in order to say what I really think of them.

To use such reasoning for a yes or no vote is a disgrace.

Aurongroove

The point being some people seem to be panicking into voting yes in case "children are not adequately protected against same sex couple adoption"

and some people seem to be voting no in case it will "open the door to same sex couple adoption".

thus, people don't know what the ****ing story it.

Annasopra

Aurongroove wrote: »

The point being some people seem to be panicking into voting yes in case "children are not adequately protected against same sex couple adoption"

Seriously? Have you actually heard this argument being made?

Aurongroove

Indeed.

Annasopra

Aurongroove wrote: »

Indeed.

stephen_n

The problem is, there is no debate to inform opinion. The only information going round as far as I can see is the referendum commission pamphlet. Which for some strange reason has articles that are not being changed in it, to add to confusion! Quite simply I'm not voting at this stage!

28064212

stephen_n wrote: »

The problem is, there is no debate to inform opinion. The only information going round as far as I can see is the referendum commission pamphlet. Which for some strange reason has articles that are not being changed in it, to add to confusion! Quite simply I'm not voting at this stage!

They're quite clear why they included those articles: http://www.referendum2012.ie/other-articles-of-the-constitution/

If the proposed Article 42A becomes part of the Constitution, it will be read in conjunction with other relevant articles. The following articles appear the most relevant in this context.

Annasopra

stephen_n wrote: »

The problem is, there is no debate to inform opinion. The only information going round as far as I can see is the referendum commission pamphlet. Which for some strange reason has articles that are not being changed in it, to add to confusion! Quite simply I'm not voting at this stage!

Lots of information out there if you look

http://www.referendum2012.ie/

http://www.childrensreferendum.ie/
http://www.yesforchildren.ie/getinformed/
http://www.campaignforconscience.org/vote-no-to-the-childrens-referendum-campaign-for-conscience/
http://www.aps.ie/page8.php

http://www.thejournal.ie/tv3-debate-childrens-referendum-636538-Oct2012/

stephen_n

mango salsa wrote: »

Lots of information out there if you look

http://www.referendum2012.ie/

http://www.childrensreferendum.ie/
http://www.yesforchildren.ie/getinformed/
http://www.campaignforconscience.org/vote-no-to-the-childrens-referendum-campaign-for-conscience/
http://www.aps.ie/page8.php

http://www.thejournal.ie/tv3-debate-childrens-referendum-636538-Oct2012/

Will have a read!

Annasopra

stephen_n wrote: »

Will have a read!

By the way - a lot of the No side are somewhat irrational, extremist religious, right wing, conspiracy theory types. It's difficult to find rational no proponents.

I do personally think there is some valid arguments being made by some of the rational ones that it doesn't go far enough.

stephen_n

mango salsa wrote: »

By the way - a lot of the No side are somewhat irrational, extremist religious, right wing, conspiracy theory types. It's difficult to find rational no proponents.

I do personally think there is some valid arguments being made by some of the rational ones that it doesn't go far enough.

I was surprised at the tv3 link as I have seen no newspaper interest and the radio current affairs shows are not paying much heed to it yet, it seems like this is a referendum for the sake of it as none of the main political parties or media really give a **** and reading that stuff it's seems to be an excercise in moving the pieces around the board with little or no change!

Annasopra

stephen_n wrote: »

I was surprised at the tv3 link as I have seen no newspaper interest and the radio current affairs shows are not paying much heed to it yet, it seems like this is a referendum for the sake of it as none of the main political parties or media really give a **** and reading that stuff it's seems to be an excercise in moving the pieces around the board with little or no change!

The issue is that almost all politicians and a lot of childrens rights organisations are in favour. There are very few people against. RTE are trying to achieve a balance of both sides (they are supposed to provide 50/50 airtime) but it is difficult to find no proponents.

stephen_n

mango salsa wrote: »

The issue is that almost all politicians and a lot of childrens rights organisations are in favour. There are very few people against. RTE are trying to achieve a balance of both sides (they are supposed to provide 50/50 airtime) but it is difficult to find no proponents.

Maybe it's hard to find meaningful opposition, to something that's meaningless.

28064212

stephen_n wrote: »

Maybe it's hard to find meaningful opposition, to something that's meaningless.

Just because most people are for it, it doesn't make it meaningless. If 95% were in favour of an amendment to explicitly recognise gay marraige, a referendum would still have to be run, and the consequences would be important, but the result would be a foregone conclusion due to popular support

Annasopra

stephen_n wrote: »

Maybe it's hard to find meaningful opposition, to something that's meaningless.

I don't think it's meaningless at all.

In cases like the Roscommon case it will be easier for the state to intervene at an earlier stage to prevent such abuse

Where the parent is a jehovahs witness and a child needs a blood transfusion hospitals will be able to give it because it is in the best interests of the child.

Where a child is an unaccompanied minor or refugee (non citizen) - he or she will have equal rights to his/her Irish peers

Where the child is like Baby Ann psychologically attached to her adopted parents it is much more difficult to remove her from her adopted parents.

Where a child is being raised by same sex parents he/she could potentially take a court case to have his/her rights vindicated to have a legal relationship to both parents.

floggg

mango salsa wrote: »

By the way - a lot of the No side are somewhat irrational, extremist religious, right wing, conspiracy theory types. It's difficult to find rational no proponents.

I do personally think there is some valid arguments being made by some of the rational ones that it doesn't go far enough.

There's a no side?

Seriously, who would want to be on the opposing side to all those cute children on the posters asking to be heard?

I haven't read all that much into it, but I think it's a flawed and lazy approach to the amendment - if addressing children's rights, all the provisions relating to family should get addressed, including fathers rights (and children's rights to have their fathers in their lives) and that women's place in the home nonsense.

Unfortunately we won't get any debate about this, and people will just go along with what they are told is best for the kids without thinking about it.

Annasopra

floggg wrote: »

There's a no side?

Seriously, who would want to be on the opposing side to all those cute children on the posters asking to be heard?

I haven't read all that much into it, but I think it's a flawed and lazy approach to the amendment - if addressing children's rights, all the provisions relating to family should get addressed, including fathers rights (and children's rights to have their fathers in their lives) and that women's place in the home nonsense.

Unfortunately we won't get any debate about this, and people will just go along with what they are told is best for the kids without thinking about it.

As I said I agree with some of the arguments that it doesn't go far enough. But I don't think people are just sheep. Read the AH thread for some of what the no side are saying.

stephen_n

Fathers rights, now there is an oxymoron if ever one existed. There is certainly nothing in this that would seek in anyway to address that!

The Roscommon case was a fundemental failure, to use the systems that are in place. It's like most things in this country, politicians legislate to justify their existentence but without out enforcement and enactment, it's just words on paper.


Think that point about same sex couples would be a very long shot!