Same-sex marriage referendum should be postponed – lawyers

Leading constitutional experts have supported journalist Bruce Arnold’s call for the coming referendums on marriage and the presidency to be postponed.

Speaking on RTĖ’s Morning Ireland, Mr Arnold said it is “intemperate and overzealous” of the Government to push ahead with the referendums when the Supreme Court has not yet ruled in the Jordan case in which the Referendum Act is itself under scrutiny.

Ms Joanna Jordan has challenged the result of the children’s rights referendum, arguing that the Government’s illegal and unconstitutional use of public money during the referendum campaign in a way that infringed upon the democratic referendum process materially affected the referendum result.

Mr Arnold, who has already caused the Government to revise the marriage referendum’s Irish-language text because the original text could be interpreted as banning marriages as currently understood, points out that if the court finds fault with the legislation, it would be necessary to amend the law while “the referendums would have to be put off”.

UCC Constitutional law lecturer Dr Maria Cahill told The Irish Catholic: “In pursuing amendments of the Constitution while there is an ongoing challenge to the legality of the Referendum Act, the Government seems to display a less than whole-hearted recognition of the role of the people in the constitutional process; a role which the Supreme Court has repeatedly described as 'sacrosanct'”.

Her colleague Dr Seán Ó Conaill agreed, saying: ”The government are reaping what they've sowed because they made such a mess of the children's referendum.”

If the Jordan challenge is successful, Dr Ó Conaill told The Irish Catholic, there would be “a bizarre situation” where “the Referendum Act would fall, so nobody could challenge the outcome of the marriage referendum”.

Describing the potential lack of a legal provision for the challenging of referendum outcomes as “very worrying”, Dr Ó Conaill said the biggest issue was that “the sovereign will of the Irish people is being interfered with by the Government”.

“The government,” he added, “has an appalling record when it comes to respecting the views of people.”

The irony of this, he said, is that Taoiseach Enda Kenny was in government at the time of the 1995 McKenna judgment which ruled that governments could not use public money to push agendas in referendum campaigns. “They should have learned,” he said.