Dr Martin Mansergh
Why should so vital a civil institution as marriage drop the requirement of equal gender representation, viz. one man and one woman?
The Irish State is a representative democracy, with a strong element of direct democracy. The people not only elect TDs and the President, they decide directly on proposed changes to the Constitution, whether they concern Ireland’s place among the nations, the institutions of State, or fundamental rights.
The principle of popular sovereignty, in Article 6 of the Constitution, states that all powers of government “derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good”.
The right to decide on all matters requiring constitutional change needs to be jealously guarded. Influential forces would like to circumvent, dilute or curtail this right. Some think that the requirement for popular ratification of new EU Treaties is a disaster waiting to happen, given the initial rejection of the Nice and Lisbon Treaties. Its merit is that it has regularly legitimated Ireland’s participation in the EU’s evolution, whilst discouraging over-enthusiastic and frequent resort to treaty change. There would be no referendum on same-sex marriage, if the change could have been procured through the courts, as was attempted, or by legislation.
This issue is a textbook case as to why a direct decision by the people is necessary, if Ireland is to remain a responsive democracy. In a cause which had few takers even ten years ago, proponents of change have succeeded in enlisting the support or acquiescence of virtually the entire Dáil, which usually faithfully reflects any division of opinion in the country. There was some debate in the Seanad, highlighting the value of that institution. Two votes to change the title ‘Marriage Equality Referendum’ were lost by 26 votes to 4. 29 Senators were absent or abstained. Three Senators voted against the bill on final stage. In some places, keen commentators have asked TDs, where applicable, to clarify their silence at local level, given all-party support at national level for a ‘Yes’ outcome. A leadership position is not always a followership one. At least, the sovereign people will be able to vote freely and in private, without needing to confide their intentions to pollsters.
This will be the third marriage referendum in 30 years. There is an inbuilt asymmetry in the outcomes. As the two divorce referendums of 1986 and 1995 demonstrated, a ‘Yes’ vote will be conclusive and in practice irreversible. If there is a ‘No’ vote, after an interval people may be asked to vote again, when more work would have to be done on ramifications of the proposal, both for children, and to improve the coherence of the law and Constitution. As Senator Katherine Zappone has put it, “the family which is protected by Article 41 of the Constitution will still be the family founded on marriage subsequent to the referendum, although this is something which also needs to be changed”.
The introduction of divorce made marriage in practice less unconditional. The present proposal radically redefines it. The only reason marriage was not constitutionally defined was because its meaning was self-evident. Some years ago before the law in England was changed, I attended a wedding there in a registry office, on the walls of which hung the following notice: “Marriage according to the law of this country is the union of one man with one woman, voluntarily entered into for life, to the exclusion of all others”. Some people here resent its relabelling as ‘traditional marriage’, as if husband and wife were an old-fashioned arrangement compared with same-sex marriage.
Ireland used to be proud of standing up for its own cultural and spiritual values. Some older people feel betrayed, when they see the assumptions and traditions underlying this society turned upside down. To our cost, there was a dark underside to the surface Ireland long presented to the world. Now, by way of compensation, we seemingly aspire to lead the avant-garde. We are asked to believe that American boardrooms will assess how we voted on same-sex marriage before investing in Ireland. Few care that passage of the referendum will deepen the secular/religious divide with unionists. Jim Wells of the DUP’s resignation as the North’s Health Minister highlights the political pitfalls of unguarded and unfounded comment hostile to same-sex marriage.
When Charles Haughey as Health Minister in 1979 piloted the first family planning legislation, it contained a conscience clause for chemists and for civil servants involved in drafting (but, unlike registrars, they did not interface with the public). He consulted widely, built consensus, and carried the bill. No room for conscience in the civil sphere is allowed today, lest it discriminate.
Equality encapsulates the mission of the ‘Yes’ campaign. Equality of status is the outcome sought, not just equality of rights. These are largely encompassed by civil partnership, curiously described by the Minister for Justice and Equality Frances Fitzgerald as “an arrangement for its time” (a mere five years). If constitutionally the family remains founded on marriage even when redefined, whether parents are a father and mother will no longer be the business of society. Could the ideal of gender equality be more difficult to transmit by example in a family with same-sex parents? Why should so vital a civil institution as marriage drop the requirement of equal gender representation, viz. one man and one woman?
There is an issue of minority rights, without resort to overblown comparisons with civil rights situations in the USA, South Africa and Northern Ireland. Shared human love is a powerful emotion. The Kelvingrove Art Gallery in Glasgow displays a graceful sculpture of two women arms around each other by American artist Patricia Cronin of herself and her partner, with the intentionally provocative title ‘Memorial to a Marriage, 2004’, a status not available in the US as a whole then or now. It is a serious decision whether that aspiration should be granted here and grafted awkwardly enough on to the existing template of marriage, requiring further extensive change.
