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The Heads of the Civil Partnership Bill were published on Tuesday by the Irish government. Lauded by its proponents, lets consider why it’s bad law.
Let’s begin by using the words of the Minister for Justice, Equality and Law Reform – Dermot Ahern – against him. The government press release, announcing publication of the Heads of Bill reads:
The Heads of Bill draw on the Colley Options Paper and the recommendations of the Law Reform Commission in their report, Rights and Duties of Cohabitants. The Scheme will establish a statutory mechanism for registration of same-sex partnerships, and set out the duties and responsibilities of registered partners, and set out the consequences of dissolution of such partnerships.
What is the Colley Options Paper? Also known as the Options Paper Presented by the Working Group on Domestic Partnership (whatever a “domestic partnership” is supposed to be), it states that the task of the Working Group which prepared it was as follows:
The Working Group was asked to consider the categories of partnerships and relationships outside of marriage which to legal effect and recognition might be accorded, consistent with Constitutional provisions. …
So the outcome of the Options Paper, publised in 2006, was a foregone conclusion, to the extent that the Minister for Justice who commissioned it (Michael McDowell) did not allow the Working Group to properly consider the option of marriage equality.
Nevertheless, the Options Paper went on to state:
The introduction of civil marriage for same-sex couples would achieve equality of status with opposite-sex couples and such recognition that would underpin a wider equality for gay and lesbian people. Civil marriage offers legal certainty and predictability in terms of the consequences for each partner. It would be administratively straightforward as the registration arrangements already in place for marriage would apply and would also be straightforward in terms of recognition.
As to the Heads of the Civil Partnership Bill: generally speaking, they at length set out amendments to various statutes, mainly inserting after numerous legislative references to “spouses” references to “civil partners”, or somesuch.
Among the amended legislation is the Civil Registration Act 2004. Interesting that this Act placed into legislation for the first time in Ireland’s history the definition of marriage as being between a man and a woman. Prior to that, the law was case-law, handed down by the courts. An option that is open to this government is to either delete or amend section 2(2)(e) of the Civil Registration Act.
The current Minister for Justice excused the failure of actually providing equality, as the fruit of all this effort, to RTE News in the following terms:
…[B]ut it is not going as far as giving them full rights to marriage, because under our Constitution it wouldn’t pass muster.
However, if the Civil Registration Act was amended, it would require someone with a lot of money, time and expert lawyers to challenge it in the courts. Granted, crazy right-wingers have that in spades, but what harm a referendum which could result? I’m sure referenda aren’t all that popular with the government since 12th June, but that’s no reason to shy away from amending the Constitution for the Nth time.
Moreover, a referendum might not necessarily be required if an enlightened Supreme Court – with the possible assistance of an informed amicus curiae, the trends among more progressive governments, and the jurisprudence of the European Court of Human Rights – was to rule that such a legislative amendment were not unconstitutional. (In fact, the first thing the Irish courts must do, is deal with “the presumption of constitutionality” which every post-1937 enactment enjoys.)
Let’s not forget, indeed, that children raised by same-sex couples are not covered by this proposed legislation, despite a recent High Court ruling describing a same-sex couple and their child as a de facto family in accordance with the right to privacy and family life under the European Convention on Human Rights.
It seems that the only real argument that is now maintained by the State against marriage equality is the Constitutional argument. Cartainly, the bogus financial or economic arguments against even some form of recognition for same-sex relationships have now been, one must assume, abandoned. Yet, no matter how much the government might wish otherwise, the arguments in relation to Constitutionality are not to the same effect: the Constitution can be interpreted in a number of ways, not least because neither “the family” nor “marriage” are constitutionally defined.
A further major flaw to this argument by the government is the existence of the final section of the Heads of Civil Partnership Bill: which provides for a system of recognition for “qualified cohabitants” – same-sex couples, or opposite-sex couples who do not wish to marry. According to the most recent census, approximately 12% of all families could potentially avail of this scheme.
Now, whatever about allowing more people to avail of marriage, but if that doesn’t “undermine the family based on marriage,” I don’t know what does.
The experience & strategy in Spain, eventually achieving equality – a must-read! [.doc]