Cathal BarryA number of subtle but intriguing amendments were made to the IHREC’s controversial policy statement, writes Cathal Barry
The claim that same-sex marriage is a human right has been back in the news lately due to the intervention of former president Mary McAleese.
In her first public comments on the issue, Mrs McAleese described same-sex marriage as a “human rights issue” and confirmed she and her husband, Martin, would be voting ‘Yes’ in next month’s referendum.
Earlier this year, the State-funded Irish Human Rights and Equality Commission was accused of misleading the public in the debate on same-sex marriage for asserting the very same point.
The IHREC, which is headed by former Children’s Ombudsman Emily Logan, insisted that civil marriage for couples of the same sex is a human right. The organisation made the claim in their Policy Statement on Access to Civil Marriage, which was released in February.
Consensus
Challenging this, barrister Patrick Treacy, and theologians Prof. Eamonn Conway and Dr Rik Van Nieuwenhove, pointed out that “there is nothing approaching the universal consensus that would be necessary to claim that same-sex marriage is a human right”.
They also accused the IHREC of ignoring a key ruling by the European Court of Human Rights (ECtHR) which they insist proves “there is no basis for the contention that same-sex marriage is a human right”.
In the case of Hamalainen v. Finland, the ECtHR reaffirmed that the European Convention on Human Rights cannot be interpreted “as imposing an obligation on contracting states to grant same-sex couples access to marriage”.
Documents released to The Irish Catholic in response to a Freedom of Information request confirm the IHREC never considered the ruling in the drafting of their policy statement on civil marriage.
This is despite the fact that an IHREC spokesperson insisted the organisation “undertook a comprehensive analysis of the international and regional human rights law, relevant equality law and comparative jurisprudence from relevant jurisdictions, taking account of the definition of human rights”.
The 18 drafts of the IHREC’s policy statement obtained by this newspaper also detail a host of intriguing corrections and amendments.
The document’s key statement – that the IHREC “believes that the opening out of civil marriage to two persons without distinction as to their sex is a matter of equality and human rights” – first appeared in Draft 12.
Before that (in Draft 11) the relevant paragraph began: “The commission is of the view that in light of the constitutional position of the family based on marriage, a constitutional referendum is welcome and arguably necessary in the Irish legal context to debate the question of whether the right to marry should be extended to same-sex couples.”
The IHREC’s statement that it believes same-sex marriage to be a human rights issue was only inserted after this (in draft 12) when the paragraph became:
“The commission believes that the opening out of civil marriage to two persons without distinction as to their sex is a matter of equality and human rights. Specifically, in light of the constitutional position of the family based on marriage, a constitutional referendum is welcome and arguably necessary in the Irish legal context to debate the question of whether the right to marry should be extended to all individuals without distinction as to their sex.”
This paragraph remained relatively unchanged in subsequent drafts. However, in the final statement, published online, the word “arguably” was omitted, with the IHREC stating that a referendum is in fact necessary: “The commission believes that the opening out of civil marriage to two persons without distinction as to their sex is a matter of equality and human rights. Specifically, in light of the constitutional position of the family based on marriage, a constitutional referendum is welcome and necessary in the Irish legal context to debate the question of whether the right to civil marriage should be extended to all individuals without distinction as to their sex.”
Elsewhere, the word “arguably” was also removed in the second last paragraph of the final published statement, which read:
“By excluding couples from participation in a social and cultural institution on the basis of their sex, the commission considers that Irish law fails to provide full recognition and equality of status for same-sex couples in a way that would underpin a wider equality for people within Irish society and would lead to a fuller recognition of their right to family life.”
The word “arguably” was omitted after appearing in the 16th draft, which read: “By excluding couples from participation in a social and cultural institution on the basis of their sex, the commission considers that arguably Irish law fails to provide full recognition and equality of status for same-sex couples in a way that would underpin a wider equality for people within Irish society and would lead to a fuller recognition of their right to family life.”
Likewise, in the summary statement at the beginning of the document, the word “arguably” was absent in the 17th draft after appearing first in Draft 12.
The 12th draft read: “The Irish Human Rights and Equality Commission (‘the commission’) believes that the opening out of civil marriage to two persons, without distinction as to their sex, is a matter of equality and human rights… The commission considers that, arguably, the current constitutional position fails to provide full recognition and equality of status for same-sex couples in a way that would underpin a wider equality for gay and lesbian people within Irish society and a fuller recognition of their right to family life.”
However, the final statement was published as follows: “The Irish Human Rights and Equality Commission (‘the Commission’) believes that the opening out of civil marriage to two persons, without distinction as to their sex, is a matter of equality and human rights… The commission considers that the current constitutional position relating to marriage does not provide full recognition and equality of status for same-sex couples in a way that would underpin wider equality for people within Irish society.”
Drafting
This newspaper also requested all submissions, both external and internal, including those from lobbyists, the IHREC has received and considered in the drafting of their policy statement.
However, a spokesperson for the organisation advised that “no submissions were sought” in relation to the drafting of the document.
While no submissions were sought, the spokesperson confirmed a draft policy statement “was circulated” to the full membership of the organisation “for their deliberation and consideration”.
Following this “a final draft with all changes requested by the members of the commission was circulated again to all members for their final approval before publication,” the spokesperson said.
While it is impossible at this juncture to reveal who requested what, the fact remains that extensive amendments were made to the IHREC’s policy statement during a consultation period with its members. Subtle amendments yes, but intriguing nonetheless.
