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Hugh O'Flaherty: Gay marriage is all about equality of esteem

IT is interesting that at the same time as the need for recognition of same-sex marriages was being debated at the Constitutional Convention, the United States Supreme Court was hearing arguments about the constitutionality of such unions. The court's decision is expected in mid-June.

In fact, a number of US states recognise same-sex marriages, but the 1996 Defence of Marriage Act (DOMA) bars the federal government from recognising same-sex marriages even in states where they are legal.

The practicalities of this bar are well illustrated in the case before the court brought by Edith Windsor. The 83-year-old had to pay $363,000 (€279,000) in extra taxes after her partner died because the federal government did not recognise their marriage.

They had been married in Canada and while New York law – where they lived – recognised the marriage, DOMA overrode it.

As noted by Jeffrey Toobin in a recent 'New Yorker' column: "DOMA also penalises gay people by preventing them from receiving social security survivors' benefits, filing joint federal tax returns, obtaining green cards for their spouses, and enjoying hundreds of other rights and benefits."

Most similar anomalies that have existed here have been met by the Civil Partnership Act of 2010, but what our gay and lesbian community seeks is the same constitutional recognition that is afforded to heterosexual marriage. As Toobin argues, once a society decides that the law must treat a group of people equally in one area of life, it becomes harder to justify discriminating against them in others.

"If gay people can't be prosecuted for being gay, then they shouldn't be fired for being gay, either. If they can't be fired, then they shouldn't be denied custody of children. And so on, to the issue of marriage."

I think if a law were passed giving same-sex marriages the same recognition as is afforded to heterosexual marriages in the Constitution, such a law would not be unconstitutional.

I have argued before that a legal right is as good as a constitutional one but I know that many people from time to time seek to have particular "rights" enshrined in the Constitution.

It is the case that the marriage that is given special recognition is that of heterosexuals and what the gay and lesbian community seeks is equality of esteem.

So, no doubt, the gay community will lobby for this: to copperfasten the idea that the commitment of gay people is worthy of the same recognition as that of heterosexuals. That is their entitlement; and if it goes to a referendum, it will be for the people to decide.

Coincidentally, much the same debate has been taking place in New Zealand, which recently passed same-sex marriage legislation.

Maurice Williamson in the parliament – his speech has posted widely on social media – sums up the case for such equality well.

Having put aside the more daunting threats that the legislation is said to pose – drought to the country and eternal hell fire for himself – he said: "All we are doing with this Bill is allowing two people who love each other to have that love recognised by way of marriage." He can understand why even moderate people might not like what others do – we are all in that category, he said – but he cannot understand why this recognition should not be afforded to the gay and lesbian community.

Two final points: it is not every gay or lesbian person that will seek marriage, most likely a small percentage. And future generations will likely look back on the attainment of this recognition as we now look back on the suffragette movement which led to the vote being opened up to women.

Hugh O'Flaherty is a former Supreme Court judge

Irish Independent