Crikey, I disappear into a world of heteronormativity for the weekend for a wedding, and – irony of ironies – it’s all go on the Civil Partnership Bill front. (Or the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009, as its snappy new short title goes.)

We last heard that the Bill had passed through the Seanad (Ireland’s upper house of parliament) with a majority of votes, thus passing both houses of the Oireachtas with approval. The next step was for the Minister for Justice and Law Reform, Dermot Ahern, to send the Bill to the President. (Dermot also indicated that he would like to see tax and social welfare bills pass through the Oireachtas quickly, in order to allow for speedy enactment of the Bill. The Civil Partnership Bill doesn’t provide for tax and social welfare matters, dontchya know.)

So, when the Bill is sent to the President, she has one of two options: sign the Bill into law or refer it to the Supreme Court to give a ruling on its constitutionality. This latter option is provided for under Article 26 of Bunreacht na hÉireann, Ireland’s constitution:

Article 26

This Article applies to any Bill passed or deemed to have been passed by both Houses of the Oireachtas other than a Money Bill, or a Bill expressed to be a Bill containing a proposal to amend the Constitution, or a Bill the time for the consideration of which by Seanad Éireann shall have been abridged under Article 24 of this Constitution.

1. 1° The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.

2° Every such reference shall be made not later than the seventh day after the date on which such Bill shall have been presented by the Taoiseach to the President for his signature.

3° The President shall not sign any Bill the subject of a reference to the Supreme Court under this Article pending the pronouncement of the decision of the Court.

2. 1° The Supreme Court consisting of not less than five judges shall consider every question referred to it by the President under this Article for a decision, and, having heard arguments by or on behalf of the Attorney General and by counsel assigned by the Court, shall pronounce its decision on such question in open court as soon as may be, and in any case not later than sixty days after the date of such reference.

2° The decision of the majority of the judges of the Supreme Court shall, for the purposes of this Article, be the decision of the Court and shall be pronounced by such one of those judges as the Court shall direct, and no other opinion, whether assenting or dissenting, shall be pronounced nor shall the existence of any such other opinion be disclosed.

3. 1° In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill.

2° If, in the case of a Bill to which Article 27 of this Constitution applies, a petition has been addressed to the President under that Article, that Article shall be complied with.

3° In every other case the President shall sign the Bill as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced.

And so, the rumor-mill is in full effect! Unconfirmed reports from Panti and her sources, and her commenters (see here, here, and here) is that the President may well refer the Bill to the Supreme Court. There is talk of eminent barristers being asked to keep themselves available over the coming weeks, but the President’s advisory body, the Council of State, has not yet been convened. She must consult with them before a referral to the Supreme Court has been made.

What does it mean, then, if a Bill is referred to the Supreme Court?

If the Bill is referred, the Court will examine its provisions as to their constitutionality. The Court may strike down all, part(s), or none of the Bill, depending on their decision. If the Bill, or part of it, is struck down, it may not become law in the State, nor can it become law in the future. If the Bill, or part of it, is upheld by the Court, then it is deemed constitutional and cannot be subject to a legal challenge to its constitutionality in the future.

It is not clear yet – and may not become clear, if the President does not disclose her reasons – exactly why or on what basis the Bill is being referred (if at all). It could be for the simple and obvious reason, concerns over the constitutionality of the Bill; and it could be for another reason, to make the Bill immune from challenge by, oh I don’t know, the likes of extreme conservative religious types, perhaps (think the Roman Catholic church; Cóir/Mother and Child Campaign/Youth Defence; some family from Co Mayo).

If it’s the former, then yes, it could be over concerns about the limited rights and duties afforded to same-sex couples under the Bill. More likely, in my view at least, is that there are concerns over the constitutionality of the provisions relating to cohabiting different-sex couples (the provisions affect both cohabiting same-sex and different-sex couples). This could be for two possible reasons: one, that these provisions automatically bind the individuals in a couple, unless they take the positive steps to opt-out; two – and here’s the rub, I think – that providing rights and duties to different-sex cohabiting couples (automatically or otherwise) constitutes an unconstitutional attack on the institute of marriage.

I’ve alluded to this previously (hyah, hyah and hyah). Dr John Mee of the Faculty of Law in UCC has previously expressed his concerns on this matter, since at least 2004. The rationale is that allowing for certain rights and obligations to unmarried straight couples is a disincentive for them to marry, and may mean fewer such couples will enter into marriage – i.e. an unconstitutional attack on marriage.

President Mary McAleese has until Wednesday to decide. Keep your eye on the Áras!

UPDATE - President signed Civil Partnership Bill this morning, and it is now enacted. http://bit.ly/9iJRAz“

(via @PantiBliss on Twitter)

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