Greg DalyChanging the definition of marriage clearly affects children, a leading constitutionalist tells Greg Daly
Mary McAleese made an interesting point in her recent interview at Notre Dame University, according to UCC constitutional law lecturer Dr Seán Ó Conaill, when she said the marriage referendum is indeed about children.
While Dr Ó Conaill says that observation was lost among other things the former president said, he says it’s “complete nonsense” to claim otherwise. “People who say the referendum is nothing to do with children are patently wrong,” he says, adding that the nature of article 41 of Bunreacht na hÉireann means that “it has to be”.
Although “there’s no definition of marriage in the Constitution”, such that strictly speaking there’s no constitutional prohibition of same-sex marriage, Dr Ó Conaill explains that “the courts have on a number of occasions gone with the traditional understanding, even as recently as 2009”.
Since “the Constitution understands the family as the family based upon marriage”, he says changing how the State sees marriage must inevitably change how the State sees the family. “By virtue of being a marital family it has to have some connection to children”, he says, adding, “If we change the nature of marriage there has to be knock-on consequences.”
Debate
Maintaining that there’s a “real debate” to be had about how the referendum could affect children, he cautions too that some arguments about surrogacy made by ‘no’ campaigners are problematic.
Citing the 1985 case of Murray v Ireland, involving a couple who killed a guard during a bank robbery and were subsequently imprisoned, Dr Ó Conaill says, “even in the Murray case, the court said married couples have a right to have a family, but rights are subject to certain restrictions”. If the marriage referendum should be passed, he says, married same-sex couples would “in theory” have the right to start families, but there would be a question of how they would do so, “given the obvious biological impediment”.
The question of whether such couples would be entitled to surrogacy hasn’t been answered, he says. Although the State could certainly legislate in that direction or the courts could rule to that effect, he says: “It’s too much of a leap to say that they’d be entitled to it, as the State could restrict it or courts could make a decision in the absence of regulation.”
As for whether the Children and Family Relationships Act has pre-empted changes to the family that the marriage referendum could affect, he says “we can’t say that because things have been dealt with in the act there’ll be no constitutional repercussions”.
Explaining that “we always have to look at the law through the Constitution”, interpreting it through a constitutional prism, he says that if the Constitution changes, so the way in which the act would be interpreted would change. “To what extent it would make a difference is an open question,” he says, adding “it all depends on where the Constitution finds itself on May 23”.
He adds that while like any other bill, the act should be “presumed to be constitutional until challenged”, he says he would “be surprised if the bill weren’t challenged at some point by someone making a natural law argument”, although he thinks the courts have of late been moving away from such arguments.
It would be helpful, he says, if the Referendum Commission were given a permanent footing so it could intervene earlier in referendum debates to address what he delicately refers to as “interesting claims” that have been “thrown out on both sides” over the last two or three months.
A more robust commission, he says, could contribute usefully to “a more informed public discourse”, and between referendums could have a role in generally educating the public about the Constitution. “If it were given a civic education role,” he wonders, “would this help us get more women and young people involved in politics?”
He is, however, loath to criticise the commission, which he believes has a good track record despite operating on an ad hoc basis with a limited budget, devoid of permanent staff or an institutional memory.
“It has served us well doing a difficult job at difficult times with limited resources, and while being treated with contempt by the State, with this government in particular treating it as an inconvenience.”
Attitude
The Government’s attitude to the commission has been nothing short of “contemptuous”, he maintains, pointing to how in advance of the 2012 Children’s Rights Referendum, the Government bypassed the Referendum Commission by using public funds to set up a separate body, supposedly independent but publishing material that “blatantly favoured the ‘yes’ side”, an action the Supreme Court unanimously agreed was “wrong and illegal”.
It’s both ironic and troubling, he says, that the Government acted this way despite having been stacked with ministers who were in office, whether as ministers, ministers of state, or government TDs, when the Supreme Court made its 1995 McKenna judgment.
While he hopes they’ve learned their lesson from the court’s 2012 condemnation of their actions, he says ministerial grumblings about broadcasting rules suggest that this might not be case, which he finds “baffling”.
“A referendum isn’t that difficult,” he says. “You let the people decide, and you don’t interfere. There are clear rules on broadcasting and funding. Why can’t they get it right?”
He describes as interesting the commission’s decision to eschew the term “marriage equality” in its material, despite it being used in the recently passed ‘Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill’. Instead, the commission has pointedly spoken of the “marriage referendum”.
While he says it is “hard to know” why the commission has taken this line, he says “Calling it the ‘marriage referendum’ looks deliberate – as though they’ve thought about it.”
Arguing that it should have been called that from the start, he says “the Referendum Commission has to be independent” and must ensure it’s not “seen to be saying that voting ‘no’ is wrong”. This would be a danger if it used the term ‘marriage equality’, he says, as it could be seen as implying a claim that “the opposition are fans of inequality”.
It’s important, he says, to grasp that Ireland’s legal understanding of equality is the traditional Aristotelian understanding, in which “you treat equal things equally and unequal things unequally”.
Explaining that “it always comes down to a value judgment”, in which you consider whether like is really being compared with like or whether people are “comparing apples and oranges”, he says those on the ‘yes’ side in the marriage debate tend to think it’s a straightforward issue of equality that “two people should be allowed to be married”, whereas those on the ‘no’ side usually don’t see it as a debate about equality at all, believing that marriage of its nature “is about a man and a woman”.
“At some point,” he says, “someone has to make a value judgment”.