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
natural parents
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,
Dublin 7.