Same sex marriage and the Constitution

Condatis

Article 41 of the Constitution refers to marriage without specifying any necessity that partners in a marriage be of any particular sex.

Courts in various jurisdictions have, at times, relied on traditional dictionary definitions that marriage is between a man and a woman.

But dictionaries have been changing their definitions – including Black's Law Dictionary and Websters – and now define marriage more widely eg "a union between two persons" (American Heritage).

http://www.slate.com/articles/news_and_politics/jurisprudence/2009/04/noah_webster_gives_his_blessing.html

How likely is it that legislation here to permit same sex marriage would survive a Supreme Court challenge to its constitutionality?

Manach

As far as I know, whilst words are supposed to take their normal meanings when being interpreted in the normal course. However if there is a specific legal meaning, in this case marriage, then the Courts would need to look at from a legal standpoint and investigate what it meant at the origins of the constitution and interpret as well in light of the current public opinion to reflect the "living document" aspect of the constitution.

Condatis

Yes indeed Manach! It is the "living document" aspect of the Constitution that I have in mind.

Have there been instances where the original meaning of words has evolved in such a manner? Whether in the Constitution or in the interpretation of legislation.

Procrastastudy

I was sat in during some of the arguments in Zappone and Gilligan. The biggest issue is the Common Law position on the definition of marriage from what I can see.

While the Constitution is a 'living document' it also can't 'be divorced from it's historical context'. There are various types of interpretation - but frankly I cant ever see any legislation coming in to be challenged.

Carawaystick

The constitution refers to a household - Teaghlach
not a family - Clann

Hence we have to pay a Muirear Teaghlaigh: a household charge, not a family charge.

I don't see how the govt can use the same word for different things, to suit them

Condatis

Procrastastudy wrote: »

I was sat in during some of the arguments in Zappone and Gilligan. The biggest issue is the Common Law position on the definition of marriage from what I can see.

While the Constitution is a 'living document' it also can't 'be divorced from it's historical context'. There are various types of interpretation - but frankly I cant ever see any legislation coming in to be challenged.

Well! As we write the government are wrestling with the language of statues to see if a way can be found to approve termination of pregnancy without resorting to primary legislation.

Would not the same mindset prompt them search for a similar avenue to permit same sex marriage?

Procrastastudy

Condatis wrote: »

Well! As we write the government are wrestling with the language of statues to see if a way can be found to approve termination of pregnancy without resorting to primary legislation.

Would not the same mindset prompt them search for a similar avenue to permit same sex marriage?

Simply put - no. There's not enough votes in it.

Peregrinus

Condatis wrote: »

Well! As we write the government are wrestling with the language of statues to see if a way can be found to approve termination of pregnancy without resorting to primary legislation.

Would not the same mindset prompt them search for a similar avenue to permit same sex marriage?

The question, though, is not whether the Government can persuade themselves that Constitutional references to marriage are capable of including same-sex unions, but whether the Supreme Court can. Any same-sex marriage legislation will, sooner or later, find its way there to have its constitutionality tested.

Read as a whole, Art. 41 does seem to contemplate that a “family” (or “Family”, as the Constitution consistently calls it) normally (i.e, normatively, not just mostly) includes a woman, because of the references in Art. 41.2 to women’s life in the home, and the duties of mothers. Now, you may think that Art. 41.2, from a policy point of view, is a steaming pile of horse manure but until the people remove it it’s part of the Constitution, and the Supreme Court is not going to pretend that it isn’t. It could very well therefore influence their understanding of what a “Marriage” (which also gets the capital letter treatment) could be.

As Carawaystick points out, the Irish text of the Constitution uses teaghlach in Art. 41, rather than clann. But clann in Irish refers to the extended family, even the tribe; teaghlach is the usual word for the nuclear family. And, coupled with references to marriage in Art. 41 and the education of children in art. 42, it’s pretty clear that teaghlach in this context does not mean a bunch of people who share a house.

None of this means that the Supreme Court will inevitably hold that Art. 41 precludes legislation to recognise same-sex marriage. As long as the legal recognition and treatment of marriage is capable of fostering and supporting opposite-sex marriages, the Court may well find that the constitutional imperative “to guard with special care the institution of marriage” and to “defend it from attack” is satisfied.

A consistent theme from the socially-conservative right is that legislating for same-sex marriage “undermines” opposite-sex marriage. I’ve never really understood this argument, and I certainly haven’t seen it made out in any very convincing way. Given the presumption of constitutionality that a statute enjoys, in any challenge to an act for the recognition of same-sex marriage, the burden of proving that this amounts to a failure to guard and defend the institution of Marriage will be on the challenger. It seems to me that they’re going to have to not just assert the “undermining” argument, but somehow demonstrate it, in order to succeed.