Senior lawyers take issue with statements of Referendum Commission and McAleese

Campaigners for Yes vote are dismissing potential legal effects of vote with “certainty that is unwarranted” says Shane Murphy Senior Counsel 

Senior lawyers have issued a statement in response to comments made this morning by the Referendum Commission and Mary McAleese.  

Shane Murphy, SC  said:

“It is accepted by both sides that if the referendum is passed, a same sex couple will have the same constitutional rights as a married heterosexual couple including a constitutional right to procreate. However the question of how such a right might be interpreted by the courts and whether it could include donor assisted reproduction (DAHR) or surrogacy or both remains to be seen."

“Today Mary McAleese claimed that the marriage referendum ‘if passed will certainly not create’ a ‘legal or constitutional right to procreation using surrogacy’, adding ‘it is a nonsense to think it could.’ And in recent days Fine Gael have displayed posters stating that the referendum is ‘about love and equality and nothing else’.”

“These statements express a certainty that is unwarranted. They purport to know and to state conclusively how the courts will interpret the effects of the proposed amendment to Article 41 in any future legal challenge or set of circumstances. Predictions made in such unqualified terms are not credible. No one can say with certainty what the full legal effects will be of amending our Constitution to say that the family is “founded” upon the union of two people whatever their sex.”

He continued:

“We know of other situations where the potential legal effects of a constitutional amendment were not immediately foreseen.  For example, who would have predicted that the constitutional amendment giving effect to the Good Friday Agreement would be viewed as fettering the State in matters of asylum and immigration law to the extent that another referendum was held?"

“The stridency of the comments by advocates of a Yes vote is in contrast with the views of the Referendum Commission. On Morning Ireland this morning, the Chair of the Referendum Commission was asked: ‘If the amendment is passed, could the courts decide that the right of male same-sex couples to procreate requires that they have access to surrogacy’. The Chair did not answer that question. Instead he limited himself to restating the uncontentious point ‘the courts have never established the right of a married couple to access fertility services in order to procreate’. This is not surprising when one considers that to date no Irish court has ever been asked to decide whether or not it does.”

Mr Murphy further noted:

“It is also interesting to contrast the absolute terms used by Mary McAleese today with the lengthy analysis given by Dr Andrea Mulligan in the Dublin University Law Journal in 2012. Dr Mulligan, who is understood  to have advised the Lawyers for Yes group on this issue, stated at the time that ‘there is a good case to support the application of the right to procreate to assisted reproduction.’ She went on to say that the question of whether the right was ‘at play’ in the case of surrogacy or donor-assisted human reproduction (DAHR) ‘is more difficult to answer’, but concluded ‘[s]uch situations could conceivably be understood as procreation in the constitutional sense’."

“What Dr Mulligan considered in 2012, and without any reference to the proposed amendment, to be ‘conceivable’, would in the view of many lawyers find further support in the event of an amendment to the constitution extending the right to procreate to same-sex couples who, by the very reason of their being same-sex, could never exercise their right procreate without recourse to DAHR or, in the case of male couples, DAHR and surrogacy combined. As Dr Mulligan further noted ‘Gay men would accordingly have a stronger interest in claiming an expansive right to procreate as their ability to procreate is more likely to be restricted’ by ‘a general prohibition on the use of or payment of surrogate mothers.’ "

"We know from other jurisdictions that the introduction of same-sex marriage increases demand for surrogacy services. If the amendment is passed, any legal claim for an ‘expansive right to procreate’ by a gay married couple could only be strengthened by reason of their new status under an amended Article 41", Shane Murphy concluded.

Ends

Statement from Lawyers Voting No

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 15^th, 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 6^th, 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 15^th, 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 11^th, 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 2^nd, 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 16^th, 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 12^th, 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 15^th, 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.