1. What the Irish Constitution currently does (and does not) say about Marriage

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1 Submission to the Constitutional Convention on Same-Sex Marriage Dr Conor O Mahony Professor Ursula Kilkelly Dr Catherine O Sullivan Dr Claire Murray Dr Aisling Parkes Dr Fiona Donson Faculty of Law, University College Cork March 19, 2013 Introduction The Constitutional Convention has been charged with considering an issue that is currently a source of extensive debate across the Western World: whether same-sex couples should be allowed to marry. In this brief submission, I aim to address a number of considerations: 1) What the Irish Constitution currently does (and does not) say about Marriage; 2) What our conception of human dignity and equality has to contribute to the current debate; and 3) Whether there are any convincing reasons for continuing to deny same-sex couples access to civil marriage. As will be seen, it will ultimately be argued that the Constitution does not currently preclude the Oireachtas from passing marriage equality legislation. However, since the prevailing political view does not share this position, it will be argued that we should amend our Constitution to remove any lingering doubts on the point and equalise the rights afforded to same-sex and opposite-sex couples, thereby removing one of the last institutionalised discriminations in our legal system. 1. What the Irish Constitution currently does (and does not) say about Marriage Article 41.3 provides: The State pledges to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack. The text of the Constitution does not define the term Marriage. There is no doubt that the provision was drafted in 1937 with marriage between one man and one woman in mind. However, original meaning is not decisive; it is well established that the meaning of constitutional provisions is not frozen according to 1937 standards, but evolves in light of prevailing standards and opinions. 1 For example, nobody in 1937 thought that the term primary education in Article 42.4 imposed a duty on the State to provide speech therapy to severely disabled children, but it is now accepted that it does. 2 Thus, the meaning of the term Marriage in Article 41.3 is similarly open to evolution in line with prevailing standards and opinions. Of course, Article 41.3 cannot be read in isolation; it must be construed in line with the surrounding provisions of the Constitution. Some have argued that the references elsewhere in Articles 41 and 42 1 See O Mahony, Societal Change and Constitutional Interpretation (2010) 1(2) Irish Journal of Legal Studies 71 (available at 2 See O Donoghue v Minister for Health [1996] 2 I.R. 20 and Sinnott v Minister for Education [2001] 2 I.R

2 to the Family and children mean that Marriage must be inherently opposite-sex and tied to the function of procreation, of which same-sex couples are incapable. However, it is accepted that infertile opposite-sex couples may marry, and married couples without children qualify as a Family within the meaning of Article Therefore, it is illogical to argue that ability to procreate is a prerequisite to access to marriage. Another provision of relevance is Article 41.2, which recognises the benefit provided to society by women who work in the home. The question arises as to whether this requires that all married couples include a woman. However, it has always been accepted that the provision does not require women to work in the home, and that the absence of a woman working in the home does not preclude a family from being recognised under Article 41. Article 41.2 simply recognises that where women choose to work in the home, this is beneficial to society. It does not define the parameters of who may and may not be recognised as a family. 4 Every provision of Articles 41 and 42 could be applied to same-sex couples in a perfectly workable way. If same-sex couples were allowed to marry, then upon marrying, they would automatically qualify as a Family within the meaning of Article 41. If women within such families chose to work in the home, they would be recognised under Article 41.2 where relevant, just as with opposite-sex couples (and men who chose to do so would not be recognised; again, just as with opposite-sex couples). If married same-sex couples had children (whether through adoption or assisted human reproduction), then the educational rights given to married parents under Article 42 would, just as with opposite-sex couples, make perfect sense when applied to them. The other provision of great relevance is Article 40.1, which states that [a]ll citizens shall, as human persons, be held equal before the law, but qualifies this by providing that [t]his shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social functions. Under this provision, the State is required to treat equals equally and unequals unequally, but only where there are some differences of capacity, physical and moral, and of social functions. A difference of physical capacity between same-sex and opposite-sex couples could be said to arise with respect to the question of whether same-sex couples are capable of creating a child together but if the qualifying clause of Article 40.1 requires that two individuals who are incapable of creating a child together should not be allowed to marry, infertile opposite-sex couples would fall into this category. As already discussed, this is not what our law provides. In terms of social function, the only potential difference that could be pointed to between opposite-sex and same-sex couples that would be raised is that of parenting; but it is well known that a significant number of same-sex couples (230 in the 2011 census) already can and do fulfil the social function of parenting, and while the law does not actively assist them in this respect, neither does it prevent them from doing so. A legal approach that says that same-sex couples can be parents but cannot marry seems to constitute arbitrary discrimination of the variety forbidden by Article A view that a difference of moral capacity exists between same-sex and opposite-sex couples is inconsistent with the commitment to 3 See Murray v Ireland [1985] I.R See O Mahony, Principled Expediency: How the Irish Courts can Compromise on Same-Sex Marriage (2012) 34 Dublin University Law Journal

3 equality that is evident in our anti-discrimination laws, which provide that it is unlawful to discriminate on grounds of sexual orientation in employment decisions and the provision of services. In sum, therefore, there is nothing in the current text of the Constitution that precludes the Oireachtas from legislating for marriage equality, and no provision that could not be applied to a married same-sex couple in a perfectly workable way. The fact that it has long been held by the courts that the Constitution guarantees a right to marry, 5 coupled with the equality guarantee of Article 40.1, suggests that marriage rights should not be limited by reference to gender or sexual orientation. Why, then, is the Constitutional Convention debating whether to amend the Constitution to extend access to civil marriage to same-sex couples? In recent years, the prevailing political view has been that marriage equality could not be legislated for without first holding a referendum to amend the Constitution. The genesis of this view can be traced to a statement made by the late Brian Lenihan TD, then Minister for Justice, in the aftermath of the High Court judgment in the Zappone and Gilligan case in This statement appears to have been based on a misinterpretation of what the High Court held in that case; 7 but nevertheless, it has since been repeated by numerous politicians from all political parties, 8 and has come to represent the conventional political view. Thus, while it is probably not legally necessary to amend the Constitution to extend marriage rights to same-sex couples, it has become politically necessary to do so, since no Government would be willing to attempt to do so by way of ordinary legislation. 2. What our conception of human dignity and equality has to contribute to the current debate Human dignity is the foundational principle of international human rights law. This can be seen in its invocation in the Preambles to the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the UN Convention on the Rights of the Child (UNCRC), all of which refer to the inherent dignity of all members of the human family [as] the foundation of freedom, justice and peace in the world. The UDHR goes further by stating in Article 1 that [a]ll human beings are born free and equal in dignity and rights. 9 The Preambles to the ICCPR and ICESCR state 5 See Ryan v Attorney General [1965] I.R Zappone and Gilligan v Revenue Commissioners [2008] 2 I.R In the aftermath of the judgment, Brian Lenihan TD, informed the media: It is my strong belief, based on sound legal advice, that gay marriage would require constitutional change and in my view a referendum on this issue at this time would be divisive and unsuccessful and, furthermore, would jeopardise the progress we have made over the last 15 years. 7 See, e.g., O Mahony, Societal Change and Constitutional Interpretation (2010) 1(2) Irish Journal of Legal Studies 71 (available at Carolan, Committed non-marital couples and the Irish Constitution in Committed Relationships and the Law (Doyle & Binchy eds., Dublin: Four Courts Press, 2007) ; Tobin, Law, Politics and the Child-Centric Approach to Marriage in Ireland (2012) 47 Irish Jurist 210, and O Mahony, Principled Expediency: How the Irish Courts can Compromise on Same-Sex Marriage (2012) 34 Dublin University Law Journal See, e.g., Martin Mansergh TD, 699 Dáil Debates 894, January 21, 2010; Ciarán Lynch TD, 699 Dáil Debates 896, January 21, 2010; Brian Hayes TD, 700 Dáil Debates 370, January 27, 2010 and 209 Seanad Debates , July 13, 2011; and Alan Shatter TD, 757 Dáil Debates, February 28, 2012 and 759 Dáil Debates, March 13, On the use of the concept of human dignity in the UDHR see Klaus Dicke, The Founding Function of Human Dignity in the Universal Declaration of Human Rights in David Kretzmer & Eckart Klein (Eds.), The Concept Of Human Dignity In Human Rights Discourse (Kluwer, 2002)

4 that the equal and inalienable rights of all members of the human family derive from the inherent dignity of the human person. Similarly, the UN Convention against Torture states in its Preamble that recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, and goes on to expressly state that those rights derive from the inherent dignity of the human person. The concept of human dignity is also invoked in the Preambles to the UN Convention on the Elimination of All Forms of Racial Discrimination and the UN Convention on the Elimination of All Forms of Discrimination against Women, both of which are devoted to the elimination of discrimination based on an external characteristic (race and sex). Similarly, the Vienna Declaration made at the World Conference on Human Rights in 1993 stated in its Preamble that all human rights derive from the dignity and worth inherent in the human person. 10 While human dignity is not expressly mentioned in the European Convention on Human Rights (ECHR) or the Treaties of the European Union, the concept has reared its head in the case law of both the European Court of Human Rights and the European Court of Justice. It has been stated to be the very essence of the ECHR 11 and to constitute the value underlying European Union equality legislation. 12 In addition to provisions of international law, the concept of dignity plays a key role in the constitutional documents of a wide array of Western States. Human dignity has been expressly invoked as a foundational principle in the constitutional documents of a significant number of countries around the world, with at least 15 European countries, as well as others such as Canada, Israel and South Africa, explicitly invoking the principle in their constitutions. 13 Dignity is the founding principle on which the German Basic Law of 1949 is based, 14 and the 1996 Constitution of South Africa expressly founds the State of the Republic of South Africa on Human dignity, the achievement of equality and the advancement of human rights and freedoms. 15 It goes on to further provide that [e]veryone has inherent dignity and the right to have their dignity respected and protected, 16 and moreover, that when interpreting the Bill of Rights, courts and tribunals must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. 17 Ireland is no exception to this trend: the Preamble to the Irish Constitution sets the 10 Vienna Declaration, World Conference on Human Rights, A/CONF 157/23, June 25, On the role of the ideal of human dignity in international human rights law, see Michael Perry, The Morality of Human Rights: A Non-Religious Ground? (2005) 27 Dublin University Law Journal Pretty v United Kingdom (2002) 35 E.H.R.R. 1, [65]. 12 See, e.g., Opinion of Advocate General Poiares Maduro, Coleman v Attridge Law and Steve Law, Case C 303/06, January 31, 2008, confirmed by the Grand Chamber, July 17, These jurisdictions include Canada, Portugal, Hungary, Belgium and Poland, Israel, Sweden, Spain, Greece, Hungary, Slovenia, Estonia, Lithuania, the Slovak Republic, the Czech Republic and Finland. See Catherine Dupré, Human Dignity and the Withdrawal of Medical Treatment: A Missed Opportunity (2006) 6 European Human Rights Law Review 678, 687ff. 14 Article I, section 1. See Christian Walter, Human Dignity in German Constitutional Law in The Principle of Respect for Human Dignity (Council of Europe Publishing, 1999) Article 1(a). 16 Article Article 39(1)(a). Irma Kroeze, Human Dignity in Constitutional Law in South Africa in The Principle of Respect for Human Dignity (Council of Europe Publishing, 1999) 88 states: The constitution recognises human dignity as not only a human right, but as a value that is foundational to the legal and social order. Academics argue that the constitution contains a hierarchy of values on which all the rights are based. According to some, human dignity is at the top of this hierarchy. This means that human dignity is the source from which all other rights are derived. Consequently human dignity is regarded as both foundational and as a specific right. 4

5 scene for the document that follows by stating that We, the people of Éire seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured Do hereby adopt, enact and give to ourselves this Constitution. The question that naturally arises is: what does the concept of human dignity entail, and what does it have to contribute to the current debate around same-sex marriage? The core demand of human dignity is the recognition that all human beings, by virtue of their humanity, are worthy of equal treatment and respect, without distinction based on external characteristics such as sex, race, age, religion, sexual orientation, disability or political belief. The Irish Supreme Court, in the judgment of Mr Justice Walsh in Quinn s Supermarkets v Attorney General, confirmed the link between the equality guarantee of Article 40.1 of the Irish Constitution and the concept of human dignity: [Article 40.1] is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community. This list does not pretend to be complete; but it is merely intended to illustrate the view that this guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow. 18 Thus, the principles of both international human rights law and Irish constitutional law make it clear that it is impermissible to treat any person or class of persons as being inferior to any other on the basis of what they are in themselves, to use Mr Justice Walsh s words quoted above. Holding that same-sex couples are not entitled to marry while opposite-sex couples are would seem to be a clear example of treating same-sex couples as inferior to opposite-sex couples on the basis of what they are in themselves. 3. Whether there are any convincing reasons for continuing to deny same-sex couples access to civil marriage A number of arguments have been made that suggest that there are legitimate reasons for treating same-sex couples differently to opposite-sex couples. In assessing these arguments, it is not enough to ask whether a legitimate goal is at stake: that goal may only be relied on to justify a restriction of rights if the restriction in question will actually achieve that goal. Thus, when a justification is offered for prohibiting same-sex marriage, it is necessary to ask whether that prohibition does anything to further the goal in question. 18 Quinn s Supermarkets Ltd. v Attorney General [1972] I.R. 1, (emphasis added). See, to similar effect, the following statement made by Herbert J. in Redmond v Minister for the Environment [2001] 4 I.R. 61, 80: In my judgment a law which has the effect, even if totally unintended, of discriminating between human persons on the basis of money is an attack upon the dignity of those persons as human beings who do not have money In my judgment this is exactly the type of discrimination for which the framers of the first sentence of Article 40.1 of the Constitution were providing. 5

6 A common argument against marriage equality is that changing the definition of marriage would devalue or undermine traditional marriage in some way. While the protection of the institution of marriage is a legitimate goal, it is not a goal that is furthered in any way by prohibiting same-sex marriage. Allowing same-sex couples to marry in Ireland today would have no impact on the status of opposite-sex married couples, and would not devalue opposite-sex marriage any more than allowing mixed race couples to marry in America in the 1960s devalued the marriages of single race couples. Indeed, if anything, an inclusive approach to marriage would re-emphasise its importance as a social institution and strengthen rather than weaken it. Therefore, the notion of protecting traditional marriage cannot be used as a justification for the current discriminatory position. A second common argument against marriage equality is an argument relating to the welfare of children. Some argue that since the optimal child-rearing environment is a family with a mother and a father, we should not allow same-sex couples to marry. This argument is flawed on multiple grounds. First, there is no evidence supporting the idea that same-sex couples do not make perfectly suitable parents, or are any less inclined to do so than opposite couples. Indeed, we have much evidence of large numbers of opposite-sex couples failing to make suitable parents, and yet they are permitted to marry without interference by the State. Second, if we were really concerned that same-sex couples were not capable of being suitable parents, we would pass laws preventing them from doing so; and yet no one not even opponents of marriage equality has suggested that we should do this. If we are content to allow same-sex couples to become parents, why would we preclude them from marrying on the basis of an argument relating to their parenting abilities? If anything, the argument relating to the welfare of children is an argument in favour of marriage equality: children being reared by same-sex parents should have the opportunity of being reared in the stable environment that marriage provides, just like children of opposite-sex parents. In sum, therefore, while the protection of the welfare of children is a legitimate goal, prohibiting same-sex marriage does nothing to further that goal. Finally, it is sometimes argued that allowing same-sex couples to marry would have a negative impact on the rights of those who are opposed to same-sex marriage. This argument is unfounded. It is a general principle that private religious or moral beliefs may not be imposed on others in a way that limits their right without a compelling justification; this is the reason why laws prohibiting contraception and homosexual conduct have long been considered unconstitutional and impermissible. Same-sex marriage would be an entirely civil institution; Article 44 of the Constitution clearly precludes the State from requiring religious organisations to marry same-sex couples, or to allow their facilities to be used for such ceremonies. Any argument based on the freedom of conscience of employees of the Office of the Registrar of Births, Deaths and Marriages is entirely selective. Such employees may be opposed to divorce on religious grounds, or to the re-marriage of a divorcee but it has never been suggested that processing such a divorce or marriage infringes on their freedom of conscience. Why should things be any different with respect to same-sex marriage? Conclusion The Irish Constitution probably does not make it constitutionally impermissible for the Oireachtas to legislate for the introduction of same-sex marriage. However, since the political establishment seems to think otherwise, a referendum amending the Constitution to extend marriage rights to same-sex couples would appear to be a political (if not a legal) necessity, in the absence of a Court 6

7 decision indicating otherwise. International human rights law and the Irish Constitution itself require that our laws begin from a starting point of equality, and only depart from equality where there are compelling reasons to do so. The reasons most commonly advanced for retaining the ban on samesex marriage are simply not compelling. Even where they claim to pursue a legitimate goal, the goal in question is simply not furthered by banning same-sex couples from marrying each other. As a result, to quote the US Court of Appeal for the Ninth Circuit, the ban serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. 19 In a society that claims to be committed to respect for human dignity, we should follow through on that commitment by amending the Constitution to protect the principle of marriage equality. 19 Perry v. Brown, 671 F.3d 1052, (2012). 7