This Sunday sees what sets to be a very busy rally in favour of marriage equality taking place in Dublin city centre.

So many would-be commentators have suggested that the only way marriage could be extended to same-sex couples is “if we have a referendum” (followed by sage nodding). Well, I ask both, “Why?” and, “What if?”

What if our legislators just legislated for same-sex marriage? They legislated for opposite-sex marriage for the first time in 2004: before then, it was all court-made law. Of course, as we all know, while courts are bound by precedent, the law can (eventually) evolve to reflect real life. Well, the 2004 Act put the kybosh on that: now courts are bound to interpret that law, and that law is pretty clear:

Civil Registration Act, 2004, section 2(2)(e):

For the purposes of this Act there is an impediment to a marriage if—
. . .
both parties are of the same sex.

So, I suggest that a law be enacted by the Dáil and the Seanad to simply delete this one line from the statute books.

But wait, I hear strains of “…but the Constitution says..” Actually, the Constitution doesn’t say: the courts said. If legislation was proposed, one of two things could happen:

(a) The President could refer the matter under Article 26 of the Constitution to the Supreme Court to examine whether the law is constitutional before it was enacted and signed into law; or
(b) An individual could attempt to challenge the legislation through the courts after it has been enacted

Referring a Bill to the Supreme Court is a discretionary function of the President. Personally, it would be quite unfortunate if President McAleese referred the matter to the Supreme Court as she has in the past been a supporter of the LGBT community. But, under the law, she may do so.

So, in an ideal world, let’s assume the legislation has been signed into law. There are a few important practical issues to consider. It’s all very well to suppose what the Constitution “says” (even though the Constitution is, in fact, silent on the definition of marriage), but there’s theory and then there’s practice. And in practice, when it comes to matters legal, there are procedures.

Firstly, someone would need to show that their personal rights are somehow adversely affected by the new law. Secondly, if they even managed to do that (which I seriously doubt), they’d have to rebut what’s known as “the presumption of constitutionality”.

The presumption of constitutionality is basically where a law enacted by An tOireachtas (our parliament) is presumed to be in accordance with the Constitution, and the burden of proving otherwise lies on the person seeking to impugn the legislation.

But first, who could actually take a case to the courts to challenge such a law? Seriously, who?? Who would actually be affected by gays suddenly being able to legally regularise their relationships?

It must be someone who can establish what’s known as locus standi. No, that’s not a biblical plague: it’s showing that you have some standing to challenge a law or a ruling.

The courts in this country have pronounced on it in various situations, to do with constitutional cases and non-constitutional cases. The authority is a case called Cahill v Sutton [1980] I.R. 269, and has been cited here, here and interestingly for our readers, in the Norris judgement of 1983. Locus standi can be summed up thusly, in the words of judge Henchy in the Cahill case:

The Constitution has given Parliament the sole and exclusive power of making laws. The courts normally accord those laws the presumption of having been made with due observance of constitutional requirements. If a citizen comes forward in court with a claim that a particular law has been enacted in disregard of a constitutional requirement, he has little reason to complain if in the normal course of things he is required … to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering.

In the same case (hat tip to McGarr Solicitors’ blog), the then Chief Justice said:

Where the person who questions the validity of a law can point to no right of his which has been broken, endangered or threatened by reason of the alleged invalidity, then, if nothing more can be advanced, the Courts should not entertain a question so raised. To do so would be to make of the Courts the happy hunting ground of the busybody and the crank.

(Emphasis mine – fnarr)

But back to the first quote: Someone please tell me, who – who? – would suffer “an injury or prejudice” if I can marry me missus?
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Give Inequality the Red Card: Civil Marriage Rally – Sunday, 19th April 2009, 2pm @ Central Bank, Dublin

Free tea and cakes before the rally @ Panti Bar, Capel Street from 12 noon; post-rally BBQ @ The Purty Kitchen, Essex Street East
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Previous posts:
Give Inequality the Red Card: Civil Marriage Rally
Same-sex relationships: are we really excluded from equality?
Marriage on Gaelick