Lawyers With Real Concerns Voting No
As the Marriage Referendum campaign moves into the final week, a group is being formed of lawyers who are increasingly concerned about the effects of the proposed change to Article 41 (The Family) of the Irish Constitution and with how this is being achieved. These real concerns are as follows:
1. Making Article 41 contradictory
The three most important paragraphs of Article 41 are set out in the Referendum Commission booklet. They are based on the understanding of the family as founded on a marriage between a man and a woman and this has been confirmed by the Superior Courts. The Government now seeks to ‘cut and paste’ into the Irish Constitution the claim that marriage has nothing to do with gender, that it is to have no regard to distinction as to sex between a man and a woman. Even if one accepts that marriage can be changed from gender-based to being genderless, this new theory of marriage is incompatible with the remainder of Article 41. To make the article in our Constitution, dealing with the family, internally contradictory and incoherent, can only lead to trouble and confusion for families, lawyers and our Courts in the future.
2. A false understanding of equality
The claim being made about equality in support of this referendum proposal is contradicted by the Irish Constitution itself. Article 40.1 provides that “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not its enactments have due regard to differences of capacity, physical and moral, and of social function.” A heterosexual relationship and a homosexual relationship are clearly and obviously different in terms of capacity, whether that is capacity to procreate or otherwise. True equality never requires the pretence that two relationships with different capacity are the same when they are not. It never justifies the imposition of a false uniformity. The Referendum Commission has not used the word ‘equality’ in its title ‘The Marriage Referendum’ because Mr. Justice Kevin Cross says that they “use a neutral description”. (The Irish Times, May 15th, 2015)
3. The systematic cutting of biological ties between children and their
The Marriage Referendum is the next major step in a programme of social engineering which not just obscures our understanding of the human person as male and female (the new ‘gender theory’) but which endorses the severing of the natural ties between a child and his or her biological parents. This radical programme has already begun with the enactment into law of the Children and Family Relationships Act, 2015 on April 6th, 2015. While Germany, Italy, Austria and Switzerland ban donated sperm or egg use, so as to preserve the genetic link between parents and off-spring, the Government has legislated to make this practice normal in Ireland. If the Marriage Referendum is passed, a same-sex couple, as a married couple, will have the same constitutional status as a married heterosexual couple. This includes a constitutional right to procreate. A lesbian couple can only procreate with donor sperm.
A male homosexual couple can only procreate with a donor egg and a surrogate mother. There is a strong argument that these practices will enjoy constitutional protection if this referendum proposal is passed. This will serve to copper-fasten in law the programme to cut the natural ties between a child and his or her biological parents which was commenced with the enactment of the Children and Family Relationships Act, 2015. The Government’s programme is then intended to find its fulfillment, after the anticipated passing of the referendum proposal, in the enactment of a Surrogacy Bill in due course which will provide for surrogacy in accordance with the new constitutional right of two married men to procreate. In regulating surrogacy, if the referendum proposal is passed, whether it would be open to the legislature to privilege an opposite-sex couple over a same-sex couple, would be, according to the Referendum Commission “Not impossible, but difficult to imagine”. (Mr. Justice Kevin Cross, The Irish Times, May 15th, 2015)
4. The imposition of the new gender theory
The new gender theory maintains that whether we are male or female is something that we can simply decide upon and change ourselves. The imposition of this theory is already confirmed as being in place by Mr. Geoffrey Shannon, Chairperson of the Adoption Authority of Ireland, who stated on The Claire Byrne Show (Monday, May 11th, 2015) that adoption “is not concerned with gender or sexual orientation”. (emphasis added) In other words, in determining the best interests of the child, the Children and Family Relationships Act, 2015 has changed the law in relation to this test by making the distinction as to sex irrelevant.
The new gender theory will also have profound implications for education of children and young adults and challenge any teaching to them that they are objectively male or female. A new group, ‘Educators for Conscience’ has now emerged with the practical expertise in this area and, therefore, this concern is being left for them to articulate.
5. Same-sex marriage is not a human right
Same-sex marriage is not a human right and the claims being made to this effect are not true. It has been specifically rejected by popular vote in Slovenia in 2012 and in Croatia in 2013, both of which are countries have emerged from Soviet oppression and which understand the centrality of the family against the wrongful encroachment of state power.
A human right must be universal. Less than 10% of the countries of the world have legalised same-sex marriage. A human right must be coherent with other human rights. Same-sex marriage is in direct conflict with the human rights of the child, particularly the human right of the child pursuant to Article 7 of the Convention on Rights of the Child of the United Nations General Assembly (September 2nd, 1990) which provides for the right of a child, as far as is possible, to know and to be cared for by his or her parents.
Former President, Mary McAleese, did not say it is a human right. She said it is “a human rights issue”. This is a controversial claim that is advanced by some, by relying upon Article 9 of the Charter of Fundamental Rights of the European Union (which became law in December, 2009 by reason of the Treaty of Lisbon) which simply refers to the right to marry but not to the right of a man and a woman to marry. This issue has, however, been recently resolved in relation to Article 12 of the European Convention on Human Rights (which deals with the right to marry) by the Grand Chamber of the European Court of Human Rights (ECtHR) in Hämäläinen v. Finland (July 16th, 2014). The Court held that Article 12 “secures the fundamental right of a man and a woman to marry and to found a family” and that it “enshrines the traditional concept of marriage as being between a man and a woman.” (§96).
We are meant to be informed about the law in relation to human rights in this country by the Irish Human Rights and Equality Commission (IHREC). As taxpayers, we fund this body. On February 12th, 2015 the IHREC issued a policy statement saying that it “believes that the opening out of civil marriage to two persons without distinction as to their sex is a matter of equality and human rights". Note again that the IHREC did not say that same-sex marriage is a human right. Its policy statement quotes from and refers to numerous cases but it excludes all reference to the most recent and important decision of the Grand Chamber of the ECtHR in Hämäläinen v. Finland. One of the Commissioners of the IHREC is the Director of the Irish Council for Civil Liberties (ICCL). Another Commissioner of the IHREC is the Founder of the Gay and Lesbian Equality Network (GLEN). Together with Marriage Equality, GLEN and ICCL make up the Yes Equality campaign in this referendum, working in tandem with the Labour Party.
The Human Rights Committee of the Law Society also prepared a position paper on the Marriage Referendum which quoted from the IHREC statement at some length and from considerable caselaw. It also, however, omitted any reference to the decision of the ECtHR in Hämäläinen v. Finland. This led to the Law Society of Ireland making a public statement on May 6th that the referendum proposal on marriage was “an issue of equality and human rights on which the Society should take a public position” although, once again, the Law Society did not claim that same-sex marriage is a human right.
Why the IHREC and the Human Rights Committee of the Law Society of Ireland excluded any reference to the most recent and authoritative decision on this question by the ECtHR is something which only their members can answer.
6. Freedom of conscience and democratic deficit
The concerns about freedom of conscience are being well ventilated in public debate and need not be repeated here. The Government will not give any assurance that the funding of Accord, the Catholic Marriage Advisory Agency, will not be removed if the referendum proposal is passed. The equivalent body of the IHREC in Northern Ireland is the Equality Commission and this body is fully involved in the legal proceedings against Asher’s Baking Company in Belfast in which judgment is awaited.
The permission by an Garda Siochana to the Yes campaign to be part of the process for the registration of voters in third level institutions and to allow for their registration desks to distribute Yes campaign badges and bear posters for this campaign was not right.
The absence of a green paper, a white paper or any inter-party debate in the Dail or Seanad about this proposal is of the most serious concern. The failure of the Government to explain to the public that this referendum proposal profoundly affects the protection of the family in Article 41 and the rights in respect of education in Articles 42 and 44.2.4 and 44.2.5 of the Constitution of Ireland, obtained in the first of the Irish (Treaty of Lisbon) protocols is another deficit in the public debate about this pivotal referendum proposal for the future direction of our society.
7. The failure to consider an obvious alternative : constitutional
recognition of civil partnerships
The Referendum Commission has clarified that the main difference between civil partnership and marriage “is that a married couple enjoy constitutional as well as legal protection” and “that’s the essential legal difference between the two.” (Mr. Justice Kevin Cross, The Irish Times, May 15th, 2015) No consideration or debate has arisen in relation to the option of providing for constitutional recognition for civil partnership or another expression in our Constitution of same-sex unions, while leaving the meaning of marriage, as between a male and a female, intact. This proposal would then remove the main legal difference between the two forms of relationships while ensuring that both would be accurately recognised in our Constitution.
Patrick Treacy S.C.
Shane Murphy S.C.
William Binchy B.L.
May 15th, 2015
The Law Library,
The Four Courts,