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Instead of tinkering with this Constitution, make a new one

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‘The entire context of the Constitution, which was drafted hand in glove with the Catholic
hierarchy in 1937, is outmoded.’ Taoiseach Eamon de Valera pictured with Archbishop John Charles McQuaid, who helped him draft that document, in 1940

‘The entire context of the Constitution, which was drafted hand in glove with the Catholic hierarchy in 1937, is outmoded.’ Taoiseach Eamon de Valera pictured with Archbishop John Charles McQuaid, who helped him draft that document, in 1940

‘The entire context of the Constitution, which was drafted hand in glove with the Catholic hierarchy in 1937, is outmoded.’ Taoiseach Eamon de Valera pictured with Archbishop John Charles McQuaid, who helped him draft that document, in 1940

There will be a national sigh of relief when this constitutional referendum campaign is over. For me, there is a weary familiarity with both sides of the argument, to the point that many voters are tired of the conversation. I am referring, of course, to the referendum on marriage equality, not the other one, which enjoys spectacular disinterest.

The change in the Constitution to allow gay and lesbian couples to marry just like heterosexual couples is straightforward. For me, the extension of marriage rights to gay couples follows rationally on the 1993 legislation which decriminalised homosexual acts. The Norris case, though rejected by the Supreme Court, was ultimately vindicated in the European Court of Human Rights.

Looking back, it was a blessing there was no actual prohibition on homosexuality in the Constitution. One shudders to think of how ferocious such a campaign would have been. As it was, the Dáil could legislate by repealing the 1861 Offences against the Person Act.

Ironically, it was a Fianna Fáil Minister, Máire Geoghegan-Quinn, who introduced the ground-breaking law in June 1993 as part of a FF/Labour coalition. It was broadly welcomed in society as long overdue. For gay rights activists, the response was euphoric. The legislation paved the way for a raft of anti-discrimination, employment protection and health reforms for gay people, culminating in civil partnership.

To be honest, back then many conservative deputies were privately uneasy with the change in the law and had a preference to avoid a vote on the matter. In the end, much to the disappointment of the celebrating members of the gay community in the public gallery, the legislation passed final stage without a vote. Some FG deputies had filibustered the debate on an amendment on the age of consent to avoid having to walk through the lobbies to support the legislation.

Most young people these days who have grown up taking sexual-orientation equality as read are incredulous that just being gay was a crime 20 two years ago and are overwhelmingly supportive of a Yes vote next week.

But for an older generation, we remember the dark days. Thousands of gay people lived secret lives of fear and deceit; many were exiles or completed suicide because of the shame and frustration of living under a pall of criminality. It was a barbaric denial of individual rights and freedom. Even worse, there was a non-enforcement of the law which was hypocritical. The judgment of the European Court forced the government's hand.

Repealing that Victorian law with comprehensive equality legislation was a mark of Ireland's modernisation and emergence into a properly functioning republic. But listening to the current debate, it is clear there are people who are willing to discriminate against same-sex relationships and deny marriage rights to them. Author Colm Tóbín spoke this week of homosexual love being respected equally. Looking back on the 1993 Dáil debates, it was interesting that the "right to love and be loved" was cited. The vote next week is about recognising that love publicly with the ceremony and status of civil marriage.

In the heady 1990s, reform and equality was in the air. Yet hundreds of thousands of people opposed removing the constitutional ban on divorce. The first attempt by Garrett FitzGerald in the 1986 referendum was lost by 63pc to 37pc.

The second attempt in 1995 by the FF/Labour coalition after the bitterest of campaigns, which divided the nation, was only carried by a margin of 0.1pc or 9,114 votes. In that campaign, the No side used child-related emotive tactics and postering such as "Hello Divorce, Bye Bye Daddy". This time, adoption, parentage and surrogacy are the decoys. "A child has a right to a mummy and a daddy". There is no such right, of course, and adoption and surrogacy law will be unaffected by the referendum change, as helpfully clarified by Mr Justice Kevin Cross, Referendum Commission Chair, this week.

Given the provenance and ethos of the Constitution, it is no surprise that most of the wrangles with the constraints of the Constitution have related to sexual and reproductive issues. The ill-judged insertion of the right-to-life Article 40.3.3. in 1983 has caused numerous tragedies and crises impacting the legal rights of pregnant women to this day. Removing it, however, would convulse the nation all over again.

Which leads me to suggest that Ireland needs a new Constitution which is not as prescriptive on such subjects as what constitutes a "family" or tries to balance competing rights of a foetus with a mother. The entire context of the Constitution, which was drafted hand in glove with the Catholic hierarchy in 1937, is outmoded, overly prescriptive and unrepresentative of a modern pluralist Ireland. All this reworking of Articles trying to adapt them to modernity is tiresome and unnecessary. Each amendment which touches on modernisation drums up the same opposing camps. Conservatives cling to constitutional definitions with biblical logic as though the Constitution was an unalterable commandment.

In 1988, the Progressive Democrats published a proposal for a "Constitution for a new Republic". It was a complete reworking of De Valera's 1937 Constitution, designed to bring the original document into the modern age while retaining most of the fundamental liberal values contained in it and in the first 1922 Constitution.

In it, the divorce ban was dropped and the territorial claim in Articles 2 and 3 abandoned in favour of a new clause expressing a desire for Irish unity by consent. It proposed a reduction in the size of the Dáil, the abolition of the Seanad. It clarified Church and State relations as well as proposed radical institutional reform.

Disastrously , the draft accidentally omitted God from the draft preamble, which was seized upon by party opponents as "trying to take God out of the Constitution"! A mortal political sin which totally diminished the impact of the document and the reform project.

But given the regular crises we are experiencing in trying to make a document imbued with the conservative values of 1937 fit a modern republic, we should consider adopting a new Constitution which does not shackle us to the past. Instead of tinkering with an old model, perhaps we need a new one.

Meanwhile, please say 'Yes' next week.

Irish Independent