Wednesday 16 August 2017

The key questions surrounding the upcoming vote on same-sex marriage

Legal Editor Dearbhail McDonald addresses the main issues raised by next Friday’s vote

David Caron, Sandra Irwin Gowran, Celeste Roche, John Curran, and Sarah Gilligan at the Yes Equality launch of posters featuring real voters appealing for a Yes vote on Grafton Street. Photo: Damien Eagers
David Caron, Sandra Irwin Gowran, Celeste Roche, John Curran, and Sarah Gilligan at the Yes Equality launch of posters featuring real voters appealing for a Yes vote on Grafton Street. Photo: Damien Eagers
Dearbhail McDonald

Dearbhail McDonald

What is this marriage equality referendum all about? - The Thirty-Fourth Amendment to the Constitution (Marriage Equality) Bill 2015 proposes to add a new section to Article 41 of the Constitution, which deals with family.

The proposed new wording 'Marriage may be contracted in accordance with law by two persons without distinction as to their sex' will not change the existing constitutional provisions on marriage.

If passed, it will mean that same sex couples will be allowed to marry and enjoy the same constitutional recognition and protections as opposite sex couples who marry do.

The word "contracted" means that the proposed change refers to civil marriage and has no impact on the religious sacrament of marriage, i.e. your traditional Church wedding.

The fact that marriage will still be contracted between two persons means that the Constitution will not recognise plural marriage traditions such as polygamy.

And you won't be able to marry your half sister or underage cousin: if the referendum is passed, there will be so called prohibited degrees of persons same-sex people can not marry, just as there are restrictions on whom opposite sex couples can and can not marry.

WHY DO WE NEED A CONSTITUTIONAL REFERENDUM TO ALLOW GAY PEOPLE TO MARRY?

Bizarrely, marriage is not defined anywhere in the text of the Constitution. But the courts have traditionally adopted the common law definition of marriage and interpreted it as that contracted voluntarily between two people, a man and a woman.

If the referendum is passed, same-sex couples who marry will have the same constitutional protections as opposite sex couples who marry.

The Referendum Commission has also stated that there will be no change in the status of marriage itself.

WHAT IS SO SPECIAL ABOUT MARRIAGE ANYWAY?

It's complicated: the family based on marriage (whether the married couple has children or not) has special status in the Constitution and, by extension, our legal system, as that family is regarded as the fundamental unit group of society.

Article 41 of the Constitution pledges to the State to guard, with special care, the institution of marriage on which the family is founded against attack.

The family based on marriage has inalienable (can't be given away) and imprescriptible (doesn't fade with the passage of time) constitutional rights.

Quite simply, the family that is not based on marriage, including same sex, lone parent and other family forms, is not a family for the purposes of Articles 41 (family) and 42 (education).

WAIT, DID WE NOT GIVE GAY COUPLES THEIR OWN FORM OF LEGAL MARRIAGE?

Yes, we did.

For four years now, same-sex couples have been able to enter into Civil Partnerships which grants marital-style rights, but not the full benefits of civil marriage, to same-sex couples.

At present, there are some 160 legal or statutory differences between civil partnership and civil marriage.

And while civil partners and their families enjoy enhanced legal protections, their family units are not recognised by - or protected - in the Constitution in the same way that opposite sex families are.

WILL PRIESTS AND RELIGIOUS MINISTERS BE FORCED TO CARRY OUT A MARRIAGE SERVICE FOR GAY PEOPLE IF THE REFERENDUM PASSES?

Absolutely not.

Whilst many priests preside over the civil or solemnising aspect of marriages during traditional Church weddings, there is no obligation on them to do so.

If the referendum passes, religious persons who act as solemnisers can refuse to perform same-sex marriages - and you can't sue them for refusing to either.

WILL GAY COUPLES BE ABLE TO ADOPT IF THE REFERENDUM IS PASSED?

They already can.

Until recently, a gay couple could not apply to adopt as a couple - only as an individual - even though foster children are routinely placed with same-sex couples.

Nobody, gay or straight, has a right to adopt - merely a right to apply to adopt - and all adoptions are subject to the best interests of the child in any event, not the sexual orientation of the prospective adoptive parent or parents.

Gay couples can now apply to adopt as The Children and Family Relationships Act, which was passed last April, widened the category of people who can adopt to include civil partners and co-habiting couples (same-sex or opposite sex) who have lived together for three years.

The law also extends "step adoptions" (where, typically, the mother of a child marries a man who is not the child's father, allowing the pair to jointly adopt) to civil partners.

As the Adoption Authority of Ireland has confirmed, our recently revised and updated adoption laws will remain in place whether the referendum passes or not.

The best interests principle is also now a constitutional requirement, courtesy of the passage of the Children's Rights Referendum.

WHAT ABOUT ASSISTED HUMAN REPRODUCTION?

The Marriage Equality Referendum has involved impassioned debate from all sides around complex moral and ethical issues associated with assisted human reproductive technologies including IVF, sperm/egg donation and surrogacy, which are methods of conceiving other than by sexual intercourse.

But we are not being asked to vote on these issues.

Until the Children and Family Relationships Act was passed, we had no law regulating Assisted Human Reproduction, so it was neither banned nor permitted. Despite the lack of regulation, more than 6,000 babies have been born - predominantly to heterosexual couples and some single women - using IVF in Ireland.

Ten years ago, the Commission on Assisted Human Reproduction (CAHR) exposed a chronic lack of legal clarity surrounding the status of the unborn and assisted human reproductive technologies, a lack of clarity that contributed to a series of legal actions including the frozen embryo case.

Under the CFA Act, the woman who gives birth will be the legally recognised mother of any child and the woman's spouse / civil partner / cohabitee may be recognised as the second parent subject to consent from all relevant parties.

Surrogacy, traditional or gestational, is unregulated for same sex or opposite couples alike. Legislation regulating surrogacy is unlikely in the lifetime of this Government.

Irish Independent

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