Courtney McGrailThe Irish Catholic has asked an interdisciplinary team, which includes Prof. Eamonn Conway and Dr Rik Van Nieuwenhove, theologians at Mary Immaculate College University of Limerick, and Mr Patrick Treacy SC of Integritas, to consider and respond to the difficult questions we all face when deciding how to vote in the referendum.
Human rights are usually understood as rights to which human beings are entitled simply because they are human beings. They are considered to be both fundamental and natural. We do not have to do anything to merit or earn them and we are entitled to them regardless of our nationality, language, religion, location, ethnic origin, gender or sexual orientation. They are ours independent of any social status we might have, or lack.
Human rights are considered universal in that they are applicable everywhere, to everyone and at every time. To be enforceable, there must be as much clarity as possible in how they are defined. They must also be consistent with one another: it cannot be the case that one human right would contradict or undermine another.
Examples of human rights are the right to life, to education, to practice one’s religion and to freedom of expression. Marriage is also understood as a human right. Everyone is entitled to marry someone of the opposite sex. The law often specifies how a human right is exercised in practice, or clarifies a general principle, e.g. there is not an absolute right to marry anyone (consanguinity), freedom of expression is not absolute either and the right to education is also limited.
Currently, in this country, two people of the same sex may enter into a civil partnership and protect fully their mutual inheritance rights to their property. In advance of the referendum, our Government also proposes, in the Child and Family Relationships Bill, to make provision for same-sex couples in civil partnership to adopt children.
Is the denial of the status of marriage to same-sex couples an infringement of their human rights?
This is the view of certain proponents of same-sex marriage. It is also the view of the Irish Human Rights and Equality Commission (IHREC). On February 12, this statutory body issued a policy statement stating that the Commission: “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.”
Internationally, there is nothing approaching the universal consensus that would be necessary to claim that same-sex marriage is a human right. In fact, fewer than 10% of countries worldwide recognise same-sex marriage legally. As yet, no country in the world has adopted it by means of popular vote, as we are being asked to. On the contrary, by popular vote, some countries have recently gone in the opposite direction, affirming marriage as possible only between a man and a woman.
The highest arbiter of what is a human right in the law of this country is the European Court of Human Rights. If an Irish citizen claims an infringement of a human right, as prescribed by this Convention, this citizen can seek admittance to this court if all domestic remedies in the Irish courts have first been exhausted.
The most recent decision by this court on the issue of whether same-sex marriage is a human right is in the case of Hamalainen v. Finland in which judgment was given by the European Court of Human Rights on July 16, 2014. The court reaffirmed that the European Convention on Human Rights cannot be interpreted “as imposing an obligation on contracting states to grant same-sex couples access to marriage”. The court went further and explicitly stated that Article 12 of the Convention (dealing with marriage) :
“…secures the fundamental right of a man and a woman to marry and to found a family. Article 12 expressly provides for regulation of marriage by national law. It enshrines the traditional concept of marriage as being between a man and a woman… While it is true that some contracting states have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the contracting states to grant access to marriage to same-sex couples.”
Judgment
If the European Court of Human Rights considered same-sex marriage to be a human right it could not have arrived at this judgment. The court also noted that no consensus in favour of same-sex marriage exists in Europe because only 10 of the 47 signatories to the Convention have legalised same-sex marriage.
It would seem, therefore, that in European law as currently interpreted by the European Convention on Human Rights, there is no basis for the contention that same-sex marriage is a human right. At the same time, the court has clearly asserted the fundamental right of a man and a woman to marry.
The IHREC issued its policy statement last week for the purpose of drawing “the Government’s attention to the evolving human rights jurisprudence in this domain which is emerging from the European Court of Human Rights”.
Yet the IHREC fails to make any reference whatsoever to this most recent decision of the European Court of Human Rights in Hamalainen v. Finland, notwithstanding a whole section entitled ‘Developments in Regional and International Law’. Instead, seemingly unaware of this decision, the document builds the case for same-sex marriage as a human right.
One would have expected the judgment to have been dealt with in detail in this policy statement, if even only to explain to the Government and the Oireachtas why the court’s finding, unfavourable as it is to same-sex marriage, can be discarded, if that is the view of IHREC.
The omission is serious and needs explanation.
The Commission has committed itself to providing “information that will highlight the human rights and equality issues of relevance to theproposed amendment in a way that can inform and assist Government and members of the Oireachtas in their engagement around the important human rights and equality aspects of this debate”.
The IHREC is a publicly funded statutory body tasked with protecting and promoting the human rights of all of us. Therefore, its work needs to be above any criticism of selectivity or bias.
There is another concern. We have referred here to the European Court’s view that there is a right of a man and a woman to marry. However, the European Court is only giving expression in law to a natural right that has been testified to throughout history.
Human rights cannot contradict each other. Could it be that the clearly established right to marriage “with distinction to sex” might be undermined by redefining marriage “without distinction to sex”?
Should a publicly funded body such as the IHREC, mandated to advise the Government on the protection of human rights, not investigate whether, by redefining marriage “without distinction as to sex”, the State might be infringing the rights of heterosexual couples to an institution which until now has protected and promoted the uniqueness of their relationship?
Background
Ireland prides itself in placing ‘family’ at the heart of society, so much so that the institution of marriage and the families it creates enjoy a privileged position within our Constitution and must be “guarded with special care”.
Like the vast majority of countries in the world, marriage in Ireland is considered to be a legally binding union entered into voluntarily by a man and a woman. We are now being asked to consider changing this definition so that two people of the same sex might also enter into a marriage.
As the referendum on same-sex marriage approaches, it is important that we all consider very carefully what a change in the law would mean for society today, and for future generations.
The issue we are being asked to vote on is about more than simply changing a piece of law which may, or may not, apply to us as individuals. It is about changing the way that we, as a society, think about family and enshrining that change within our Constitution.
The Irish Catholic has asked an interdisciplinary team, which includes Prof. Eamonn Conway, and Dr Rik Van Nieuwenhove, theologians at Mary Immaculate College, University of Limerick and Mr Patrick Treacy SC of Integritas, to consider and respond to the difficult questions we all face when deciding how to vote in the referendum. Over the next few weeks we will be publishing their responses.