Greg DalyThe Government’s approach to the referendum raises questions about the nature of our democracy writes Greg Daly
The coalition’s decision to describe the forthcoming vote of same-sex marriage as ‘marriage equality’ raises questions about whether the Government is approaching the referendum in a neutral fashion, a prominent legal expert has warned.
According to Dr Sean Ó Conaill, a lecturer in Constitutional Law at University College Cork, if the Government wants to avoid controversy and ensure public confidence in the referendum process, they should abandon the term “marriage equality” and simply call the referendum the “marriage referendum”.
Dr Ó Conaill told The Irish Catholic that the Government’s constant use of the loaded term ‘marriage equality’, notably in the context of the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015, is constitutionally questionable and of a pattern with previous Government failures to conduct referendum campaigns in a neutral fashion.
Recognising that opponents of marital redefinition argue that calling the referendum “the marriage equality referendum” implies that they are opposed to equality, the UCC lecturer notes that many on the ‘no’ side maintain that they are in no way opposed to equality but see the issue as one which “they oppose on first principles”.
He also observes that ‘no’ campaigners could argue that the Government’s use of the term ‘marriage equality’ implies a particular understanding of equality that is not necessarily in line with Irish law.
Pointing out how Irish courts have tended to avoid defining equality, he nonetheless says they have on many occasions operated on the basis of the classic Aristotelian definition of equality, which maintains that “true equality is not treating everyone the same”, but rather entails “treating equals equally and unequals unequally”.
As an example, he cites how Irish courts treat unmarried mothers and unmarried fathers in different ways, justifying this on the basis that “there are different biological connections and different bonds between mothers and child and between fathers and children”.
Ironically, he says that if the marriage referendum and the forthcoming law to facilitate adoption by same-sex couples are both passed, unmarried natural fathers could have fewer rights in connection with their children than will adoptive parents in same-sex marriages.
Pointing out that he has not yet decided how he will vote, Dr Ó Conaill says to call the referendum the “gay marriage referendum” or the “same-sex marriage referendum” would likewise pose problems, not least in how they could be construed as implying value judgements of their own. The key issue, he says, is “the impartiality of the State”, reiterating that “the Constitution belongs to the people, not to the Government” and that it is very important that “the State shouldn’t interfere” with the democratic process.
Outcome
Saying that there is “no problem” with individual politicians speaking in a way that could be seen as prejudging the results of referendums, he said that the State should “steer clear” of even being seen to presume an outcome.
Similar concerns about the Government prejudging the results of the referendum have been expressed by the Bishop of Elphin, Dr Kevin Doran, who has taken issue with how the Government last June voted against a UN proposal on the protection of the family.
The proposal, backed by most members of the UN Human Rights Council, recognised as the natural and fundamental group unit of society and the natural environment for the raising of children, the family was entitled to protection by the State.
Commenting on how the UN proposal dovetailed neatly with Ireland’s constitutional understanding of the family, Dr Doran queried whether in opposing the proposal the Government had acted against its constitutional duties, and wondered whether, in opposing the proposal because – as Ambassador Patricia O’Brien said – “the family can take many forms”, it had “prejudged the outcome of the referendum to change the meaning of marriage”.
Arguing that Irish governments have “prior form” for inappropriate interference in the referendum process, Dr Ó Conaill described how in the 1995 McKenna judgment the Supreme Court had ruled that the Government had breached the Constitution by expending public funds in the promotion of a particular result in a divorce referendum.
Unconstitutional
The material published by the State during 2013’s children’s rights referendum was “blatantly in favour” of a ‘yes’ vote, he added, in such a way that “any first year law student could have said what the Government was doing was unconstitutional”.
While the validity of that referendum outcome is currently under scrutiny by the Supreme Court, Dr Ó Conaill believes the Government is confident the courts won’t require the referendum to be rerun.
In the 1996 Hanafin case, he says, the Supreme Court ruled that although the government had promoted the case for divorce in an unconstitutional fashion, it would be “an awesome undertaking” to set aside the result of the 1995 referendum.
“This,” says Dr Ó Conaill, “leads to interesting questions about the nature of our democracy and the nature of our courts, inviting questions about how far our courts will go to vindicate the rights of Ireland’s citizens”.