Price of Irish Government’s rushed referendum on marriage laid bare

It appears very likely that the Irish Government, backed by all the political parties in the country’s parliament, may have very good reasons to regret its rush to judgement in putting a referendum on marriage – on the basis of what they call a “marriage equality” Bill –  before the electorate.

Already it has been pointed out that before such referendums are proposed on constitutional issues they are preceded by a “green paper” and a “white paper” which are laid before the parliament for study and discussion. None of these prudential measures of good government procedure were taken in the case of this hurried proposal.

A legal opinion has now been obtained at the behest of the Iona Institute, the country’s premier think-tank on values and the family, which suggests that if this referendum redefining marriage is carried a veritable Pandora’s Box of legal contradictions and conflicting rights will be opened. The redefinition proposed will obliterate the identification of marriage as a bond formed by a man and a woman exclusively and as that on which the natural family is founded.

“If we pass the marriage referendum as the Government wants it will have profound changes on how we view the family in our law”, the Institute concludes. The legal opinion commissioned by Iona examines the possible legal consequences of the change, if it is accepted by the people on 22 May when they go to the polls. Fundamentally the study  shows that any ability to lawfully distinguish between same sex and opposite sex couples for purposes such as adoption etc. will be severely and probably wholly undermined.

The legal implications of this are far-reaching.

The legal opinion is by Michael Collins, a  Senior Council,  and Paul Brady, Barrister at Law who has a doctorate in Law from Oxford University. It examines the Irish  Constitution, and in particular Article 41, called ‘The Family’, in the light of various past rulings by the country’s Supreme Court.

It shows that the constitutionally protected right to marry is also a constitutionally protected right to found a family, which includes the right to have children. The right to marry therefore is unavoidably linked to the definition of the family.

The specific question to Counsel was:  If the Amendment takes effect will it be constitutionally permissible in any law or in the application of any law to require, permit or give effect to more favourable treatment for a married couple comprising a man and woman than for any other type of married couple, in particular with regard to laws (a) providing for adoption and fostering of children, (b) regulating surrogacy, (c) regulating assisted human reproduction?

The legal opinion is of the view that the answer in each case would probably be ‘No’. That is, if either adoption law or laws around surrogacy and assisted human reproduction (AHR) were to give preference to married men and women as distinct from two married parents of the same sex on the grounds, for example, that children being placed for adoption or conceived via AHR and/or surrogacy ought to have a married mother and a father where practicable, such laws would likely be struck down as unconstitutional save in very exceptional circumstances.

In other words, if Article 41 is changed as is proposed, it would become constitutionally more difficult to reflect in our laws the view that married men and women are different from two married people of the same sex in matters concerning the raising and welfare of children.

The opinion is confined to a legal analysis of the above question regarding the legal implications of the proposed amendment. It does not express any view on the merits of the amendment.

The Iona Institute itself believes “the conclusions of this opinion are very significant for the current debate. For example, the recently passed Children and Family Relationships Act permits same-sex couples to adopt and use AHR on the same terms as married men and women despite the fact that two men or two women can never give a child a mother and a father.

“Given what the opinion says about the legal implications of the amendment for future laws dealing with such matters, it should now be clear that the amendment, if passed, will make it much harder for a future Government to reverse those aspects of the Children and Family Relationships Act 2015.”

To read the legal opinion in full, click here.

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