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Following on from my previous article, and some of the debate generated by the publishing of the Heads of Civil Partnership Bill, I thought I would elaborate in more detail on my thoughts. Also, I’m feeling quite ranty.
As the Queen said to Alice, let’s begin at the beginning, then continue until we reach the end; and then stop.
I shall begin with the basics: Bunreacht na hÉireann. “Bunreacht”, “bunaidh”: the basics, the fundamentals. Or in other words, the constitution of Ireland. Of course, the issue of the constitution seems to be the last to be dealt with by commentators and politicians – often with the apparent attitude being that any push for full marriage equality would require a constitutional referendum, so let’s not even consider the matter.
At this point it should be mentioned that the constitution of Ireland is regarded as “a living document”. This is an established legal view of the highest courts of this land. That is to say, the constitution isn’t interpreted according to the prevailing attitudes of 1937, when it came into force. The constitution is interpreted according to the attitudes of contemporary times.
So, first of all, why was I yabbering on earlier in Irish? Article 8 of the constitution tells us that the first language of Éire – or, in English, Ireland – is Irish; we are afterwards told that English is a second language of Ireland. The Irish constitution was written simultaneously in Irish and in English, as opposed to being translated from Irish into English. The courts are clear, however, when they say that if there is any clash in terminology or interpretation, that the Irish language constitution prevails.
Why is this interesting? It is interesting because we are constantly told that the constitution will have to be amended to give full marriage equality to same-sex relationships. So just what, exactly, are we being told has to be amended? Article 41 of the constitution, presumably. The most quoted section in this respect is:
The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
And that, we are led to believe, is that. What is to be done? No possibility of same-sex marriage on that basis, no-no.
Or, does that argument bear scrutiny?
The quoted provision comes from the section of the constitution entitled, “The Family”, and that is within a section called “Fundamental Rights”. So this is important detail. Not “marriage”, but “The Family”. It is not by accident that this collection of constitutional provisions comes under this heading. But look at the Irish language version of the constitution, and it reads “An Teaghlach”. Not “the family”, but “the household”.
So, from the outset we see where the constitutional priorities lie.
The first provision under the “Family”/”Teaghlach” heading is:
1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
1. 1° Admhaíonn an Stát gurb é an Teaghlach is buíon-aonad príomha bunaidh don chomhdhaonnacht de réir nádúir, agus gur foras morálta é ag a bhfuil cearta doshannta dochloíte is ársa agus is airde ná aon reacht daonna.
2° Ós é an Teaghlach is fotha riachtanach don ord chomhdhaonnach agus ós éigeantach é do leas an Náisiúin agus an Stáit, ráthaíonn an Stát comhshuíomh agus údarás an Teaghlaigh a chaomhnú.
So we see, re-stated but in some more detail, the primary status afforded to families, or households, according to the constitution. No definition of family, or teaghlach, yet. Nor mention of marriage.
The next provision of the constitution, and one which has been the source of some rankling from about 50% of the population, reads as follows:
2. 1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
2. 1° Go sonrach, admhaíonn an Stát go dtugann an bhean don Stát, trína saol sa teaghlach, cúnamh nach bhféadfaí leas an phobail a ghnóthú dá éagmais.
2° Uime sin, féachfaidh an Stát lena chur in áirithe nach mbeidh ar mháithreacha clainne, de dheasca uireasa, dul le saothar agus faillí a thabhairt dá chionn sin ina ndualgais sa teaghlach.
This provision may be regarded as a product of its time, and certainly such attitudes may have led to the “marriage bar” in the Irish civil service, which required the mandatory resignation of female employees once they married. That requirement was done away with upon accession by Ireland to the European Union.
The provision may be regarded as an example of what was next in order of priority for the constitution as enacted, but also can be used to demonstrate the evolution of interpreting the same text for contemporary times, as legislated by An tOireachtas since 1973.
Finally, then, in the very last section, at the end of the list of priorities, we reach Article 41.3.1°:
3. 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
3. 1° Ós ar an bPósadh atá an Teaghlach bunaithe gabhann an Stát air féin coimirce faoi leith a dhéanamh ar ord an phósta agus é a chosaint ar
Here we have a limited definition of “family”, or “teaghlach”, defined by reference to the institution of marriage. The definition arises in the context of the commitment of the State to protect the institution of marriage from attack. We do not have a definition, however, of marriage: that remains open to interpretation. Nor do we have a definition of an “attack”, or “ionsai”, on marriage.
But wait, what to we have here? There is more to Article 41.3:
2° A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that –
i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the five years,
ii. there is no reasonable prospect of a reconciliation between the spouses,
iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
iv. any further conditions prescribed by law are complied with.
2° Féadfaidh Cúirt a bheidh ainmnithe le dlí scaoileadh ar phósadh a thabhairt sa chás, ach sa chás amháin, gur deimhin léi
i. go raibh, ar dháta thionscnamh na n-imeachtaí, tréimhse ceithre bliana ar a laghad, nó tréimhsí ceithre bliana ar a laghad san iomlán, caite ag na céilí ina gcónaí ar leithligh óna chéile le linn na gcúig bliana roimhe sin,
ii. nach bhfuil ionchas réasúnach ar bith ann go mbeidh comhréiteach idir na céilí,
iii. go bhfuil cibé socrú ann, nó go ndéanfar cibé socrú, is dóigh leis an gCúirt a bheith cuí ag féachaint do na himthosca, le haghaidh na gcéilí, le haghaidh aon leanaí le ceachtar acu nó leis an mbeirt acu agus le haghaidh aon duine eile a bheidh forordaithe le dlí, agus
iv. go gcomhlíontar aon choinníollacha breise a bheidh forordaithe le dlí.
A constitutionally-sanctioned attack on marriage, based upon the wishes of the people of this State, one might say.
In short, then, the counstitution places priority on families, or households, and especially those based on marriage; but the consitution does not define marriage, nor does really it help us in defining the family or the household; finally we have seen that the constitutional obligation on the State to “guard with special care the institution of marriage” is limited by the constitutionally permitted dissolution of marriage, which was inserted into the constitution based on the will of the people.
So, we’ve looked at what the constitution of Ireland says, and how it could possibly be interpreted in theory. But why do politicians insist that the constiution needs a referendum to allow for marriage equality for same-sex couples, and how have the courts interpreted it? And is there any other case-law that needs to be taken into account? I’ll try to sift through the role of the courts in this area, both pre- and post-Bunreacht na hÉireann of 1937.