"Marriage Referendum" - a legal question

Snatchy

Hi guys,

I've decided to post this thread in this forum because I know it is often visited by lawyers and may therefore be responded to by people with a legalistic and (hopefully) emotionless mindset.

On a quick review of Article 41 and the proposed amendment language, my thoughts are:

- notwithstanding what many folks' views on this is, "The Family" has, since the enactment of the constitution, always meant and was intended to mean a union between a man and a woman (with or without child) - this has been the interpretation of our courts throughout 7+ decades of jurisprudence. How will the courts now interpret "The Family" if the referendum is passed? Does all relevant jurisprudence all of a sudden fall by the wayside? Will cases from decades ago (that didn't at the time of judgment fall under the definition of Family) be challenged/appealed? Whether or not, the "classical" interpretation of "Family" is right or wrong is anyone's argument HOWEVER as a "yes" vote will almost certainly alter its meaning within the constitution, it should be discussed in this campaign as much as (if not more) than the idea of "marriage equality". Apologies if this is indeed the case and people have been talking about the implications on the meaning of "Family" in an open and truthful sense. I don't live in Ireland and therefore don't get to see the full breadth of coverage; and

- the proposed addition to Article 41 - "Marriage may be contracted in accordance with law by two persons without distinction as to their sex." is poorly drafted. The "yes" campaign seems to talk an awful lot about equality but the equality in accordance with this proposed language is limited to non-distinctions only as to sex. Can we legally make other distinctions, then and would that be right or "equal"? Can I marry my friend because I "love" him? Or my sibling? Can I marry two people if all three of us are in a "loving relationship"? The drafting is just plain lazy - a half-arsed effort but typically unsurprising.

My overall thought is that all of Article 41 needs to be redrafted (or even better, deleted and covered by detailed legislation!). There is a lot of other archaic stuff in there. There needs to be a clear attempt by the government (or by the legislature) to define the modern "Family" and give the public a clear understanding of the intention behind this referendum (and thereby on what it is that they are actually voting on) which, to my mind, is that same-sex couples are a "Family" (within the context of the constitution) in the exact same way as a heterosexual couple. Why can't we be very clear about that in this referendum?

I am 100% fine with what this referendum is about in principal (and would ordinarily vote "yes") BUT:

- I think the "yes" side have been rather snide about their own perception of "equality" without really taking into full consideration the meaning of the term beyond the "same sex" dilemma - effortlessly self serving attitude;

- the amendment, as currently proposed, just doesn't "fit" with the rest of Article 41 and the courts' jurisprudence thereon;

- the language itself is lazy, not broad enough and is too limiting in scope; and

- I think a lot of people think that they are purely voting for "equal rights" for "gay couples" which is just a bit of a falsity. Yes, that is part of it but the implications (particularly in light of the proposed language) are far broader than that. Nobody seems to have explained to the public exactly what legal implications a "yes" vote could have if Article 41 remains as it is.

Does anybody agree with the above?

Any law students here with opinions on how this should be handled in terms of language or the effect a "yes" vote would have on the interpretation of Article 41 (or aspects of Article 41) or associated jurisprudence? What have your constitutional law lecturers said about this?

S

FreudianSlippers

In accordance with law means what it says - all laws relating to marriage stand, save those that discriminate based on sex.

I'm not into family law, so I'm sure someone else can point to relevant legislation, but all marriage must still comply with all laws relating to age, capacity and incest (etc.); this amendment literally only relates to the gender of the people getting married.

234

Snatchy wrote: »

- notwithstanding what many folks' views on this is, "The Family" has, since the enactment of the constitution, always meant and was intended to mean a union between a man and a woman (with or without child) - this has been the interpretation of our courts throughout 7+ decades of jurisprudence. How will the courts now interpret "The Family" if the referendum is passed? Does all relevant jurisprudence all of a sudden fall by the wayside? Will cases from decades ago (that didn't at the time of judgment fall under the definition of Family) be challenged/appealed? Whether or not, the "classical" interpretation of "Family" is right or wrong is anyone's argument HOWEVER as a "yes" vote will almost certainly alter its meaning within the constitution, it should be discussed in this campaign as much as (if not more) than the idea of "marriage equality". Apologies if this is indeed the case and people have been talking about the implications on the meaning of "Family" in an open and truthful sense. I don't live in Ireland and therefore don't get to see the full breadth of coverage; and

Yes, it will change the definition of family since the family in the constitution is the family based on marriage. So the definition of family will change in so far as it will admit same-sex marriages into the definition of family.

I really can't see what else about it will change. Adoption is being dealt with separately with other legislation. Same-sex couples will now enjoy the same tax advantages as opposite-sex couples, which is a good thing. Overall, nothing about what a "family" is entitled to will change, it's just that now a same-sex couple constitutes a "family."

As to a larger re-cast of Art 41. This is really a separate issue and one that would require an extensive consultation. And really, it's a completely separate from same-sex marriage and you will only confuse the debate by mixing the issues. Not to mention that it would allow those opposed to same-sex marriage to say "Look at these gays; forcing us to change the family forever. Is this what the men of 1916 died for?!"

- the proposed addition to Article 41 - "Marriage may be contracted in accordance with law by two persons without distinction as to their sex." is poorly drafted. The "yes" campaign seems to talk an awful lot about equality but the equality in accordance with this proposed language is limited to non-distinctions only as to sex. Can we legally make other distinctions, then and would that be right or "equal"? Can I marry my friend because I "love" him? Or my sibling? Can I marry two people if all three of us are in a "loving relationship"? The drafting is just plain lazy - a half-arsed effort but typically unsurprising.

Yes we can legally make other distinctions, the article as currently phrased doesn't have any prohibition on polygamy, bigamy or incest. These matters are dealt with by legislation at a sub-constitutional level and this will remain the same.

Generally, it pays to draft constitutional amendments as sparingly as possible to avoid unintended future consequences.

There is nothing in the wording proposed that would in any sense make anything currently prohibited legal (other than same-sex marriage). So no can't marry two people, or your sibling. And yes you can marry your friend. Just as you can now. It just means that now you can marry friends of the same gender. There is no requirement that people have to love eachother in order to marry and there never has.

Snatchy

234 wrote: »

Yes, it will change the definition of family since the family in the constitution is the family based on marriage. So the definition of family will change in so far as it will admit same-sex marriages into the definition of family.

I really can't see what else about it will change. Adoption is being dealt with separately with other legislation. Same-sex couples will now enjoy the same tax advantages as opposite-sex couples, which is a good thing. Overall, nothing about what a "family" is entitled to will change, it's just that now a same-sex couple constitutes a "family."

As to a larger re-cast of Art 41. This is really a separate issue and one that would require an extensive consultation. And really, it's a completely separate from same-sex marriage and you will only confuse the debate by mixing the issues. Not to mention that it would allow those opposed to same-sex marriage to say "Look at these gays; forcing us to change the family forever. Is this what the men of 1916 died for?!"



Yes we can legally make other distinctions, the article as currently phrased doesn't have any prohibition on polygamy, bigamy or incest. These matters are dealt with by legislation at a sub-constitutional level and this will remain the same.

Generally, it pays to draft constitutional amendments as sparingly as possible to avoid unintended future consequences.

There is nothing in the wording proposed that would in any sense make anything currently prohibited legal (other than same-sex marriage). So no can't marry two people, or your sibling. And yes you can marry your friend. Just as you can now. It just means that now you can marry friends of the same gender. There is no requirement that people have to love eachother in order to marry and there never has.

Thanks for your response - very insightful.

I've highlighted two paragraphs. One of my issues is that the content of the highlighted paragraphs is related. As you've said (and I agree), the definition of "Family" will change with a "yes" vote. Is this talked about by the campaigners? I don't know exactly what the implications would be without researching it but my sense is that they would not be insignificant (you have mentioned some positive ones; are there any negative ones?). Are Irish citizens genuinely considering the effect of this (and as mentioned, there may not be any effect or it may be negligible or conversely, it could be profound) when deciding to vote and, should they be?

seamus

234 wrote: »

There is nothing in the wording proposed that would in any sense make anything currently prohibited legal (other than same-sex marriage). So no can't marry two people, or your sibling. And yes you can marry your friend. Just as you can now. It just means that now you can marry friends of the same gender.

I think what I find most interesting is the (undoubtedly intentional) side-effect of this amendment to put a firmer definition on marriage and in effect put a constitutional ban on what can and cannot be a marriage.

So it defines marriage as a contract - this in effect requires both parties to be capable of consent, therefore putting an age and mental capacity requirement in place.
It also defines marriage as being between two, effectively banning polygamy. Now, I have no issue with polygamy, but this amendment does remove the "slippery slope" argument in that regard
And it defines marriage as being between "persons". Which bans any quirky marriages with animals or inanimate objects.

This places what is in effect a definition of marriage - a contract between two adults of any gender, within the bounds of the law - into the constitution, where previously none existed.

For anyone who is concerned about the sanctity of marriage or its protection, this amendment is in fact a giant improvement on what currently exists, as any wholesale "redefinition" of marriage will by default in future require a referendum.

234

Snatchy wrote: »

Thanks for your response - very insightful.

I've highlighted two paragraphs. One of my issues is that the content of the highlighted paragraphs is related. As you've said (and I agree), the definition of "Family" will change with a "yes" vote. Is this talked about by the campaigners? I don't know exactly what the implications would be without researching it but my sense is that they would not be insignificant (you have mentioned some positive ones; are there any negative ones?). Are Irish citizens genuinely considering the effect of this (and as mentioned, there may not be any effect or it may be negligible or conversely, it could be profound) when deciding to vote and, should they be?

Well as I've said, the entitlements of a family wont' change at all. It's just its definition that will change. So all the things that they were entitled to before will remain unchanged.

I'm not an expert on family law, but I believe the reason that there has not been a great deal of discussion on this issue is because there isn't really anything to discuss.

The only effect is that same-sex couples will have access to the same entitlements. I don't want to brand people without hearing what they have to say first, but people who make a big about this area seem to be opposed to the idea of same-sex couples having access to these entitlements per se, since the nature of the entitlements themselves won't change.

Edit TLRD: Since the entitlements won't change, the only potential negative is the fact that same-sex couples could access them.

Uno my Uno.

My understanding from a legal perspective is that this referendum will allow two men or two women to marry in accordance with law and thus be entitled to all of all the legislative and constitutional rights that being married involves. Essentially the right to be considered a family unit and the right to for that Family unit/marriage not to be discriminated against on the basis of the gender or sexual orientation of those people in it.

I don't consider that to change the definition of a "family" whatever that actually is.

All preexisting legislation and jurisprudence is unaffected save where it prohibits marriage between two people of the same gender.

Furthermore I don't think it is at all correct to call the drafting of the proposed amendment "Lazy". As much as some legal writing would lead you to the opposite conclusion, law is not judged or valued on the basis of the amount of words used. Often the briefer or more simple the words used in drafting a piece of legislation the better. This is particularly true in respect of the Constitution where the unanticipated consequences can be both legion and far reaching.

It would seem plain to me that those people who oppose this amendment wish to discriminate against a certain minority of people in our society on the basis of their sexual preference (although they may dress it us as "protecting" Family values or tradition or whatever) by denying them the rights and protections that marriage affords. That is repugnant to me.

234

seamus wrote: »

I think what I find most interesting is the (undoubtedly intentional) side-effect of this amendment to put a firmer definition on marriage and in effect put a constitutional ban on what can and cannot be a marriage.

So it defines marriage as a contract - this in effect requires both parties to be capable of consent, therefore putting an age and mental capacity requirement in place.
It also defines marriage as being between two, effectively banning polygamy. Now, I have no issue with polygamy, but this amendment does remove the "slippery slope" argument in that regard
And it defines marriage as being between "persons". Which bans any quirky marriages with animals or inanimate objects.

This places what is in effect a definition of marriage - a contract between two adults of any gender, within the bounds of the law - into the constitution, where previously none existed.

For anyone who is concerned about the sanctity of marriage or its protection, this amendment is in fact a giant improvement on what currently exists, as any wholesale "redefinition" of marriage will by default in future require a referendum.

Well it just reflects at a constitutional level what the common law has said for decades/centuries. So yes, it removes the possibility of the constitutional definition (or lack thereof) being used as a justification for changing the legal definition, but considering how the Supreme Court has interpreted marriage in the past, and how these matters are generally left to the Oireachtas, I don't think there was ever a real danger of a slippery slope.

Victor

seamus wrote: »

This places what is in effect a definition of marriage - a contract between two adults of any gender, within the bounds of the law - into the constitution, where previously none existed.

Actually, you don't need to be an adult to get married (minors need high court consent) and the amendment doesn't change that.

CaoimheSquee

A group of lawyers published a document in support of a yes vote which may help you also.

@lawyersforyes on twitter, and the Facebook page is Lawyersforyesequality (sorry can't post link).

Carawaystick

The Irish text uses the word Teaghlagh meaning Household.
The household charge is Muirear Teaghlaigh, see https://www.householdcharge.ie/Default.aspx and change the language to Gaeilge.
Imagine the compliance rates Revenue or no Revenue, if the govt brought in a Family Charge...

It'll be interesting when 2 women marry, how neither of them will be required by economic necessity to worry about neglecting duties in their home.

MrWalsh

Carawaystick wrote: »

It'll be interesting when 2 women marry, how neither of them will be required by economic necessity to worry about neglecting duties in their home.

Thats already an issue now in a heterosexual marriage. I am a woman, I am the higher earner, as a result I worry about neglecting my duties in the home. Perhaps I should take a case for the government to pay some of my mortgage to allow me to work less hours so I do not neglect my duties in the home?

Carawaystick

MrWalsh wrote: »

Thats already an issue now in a heterosexual marriage. I am a woman, I am the higher earner, as a result I worry about neglecting my duties in the home. Perhaps I should take a case for the government to pay some of my mortgage to allow me to work less hours so I do not neglect my duties in the home?

Go ahead, but I'd sign Mrs Walsh on any documents needed

Peregrinus

MrWalsh wrote: »

Thats already an issue now in a heterosexual marriage. I am a woman, I am the higher earner, as a result I worry about neglecting my duties in the home. Perhaps I should take a case for the government to pay some of my mortgage to allow me to work less hours so I do not neglect my duties in the home?

No, the obvious solution is for the government to repeal the equal pay legislation so that you can be paid less, and then you won't suffer the pressure of being the higher earner, compelled by too much prosperity to neglect your duties in the home.