Should equal marriage be put in Article 40.1 instead of Article 41?
Let's contemplate what might happen if the proposed marriage amendment were to be included as part of the equality guarantee (let's say as an addendum to it, or as Article 40.1.2) rather than in the Family provisions.
Would many no voters vote yes if this referendum addressed Article 40.1 instead of Article 41?
Probably not. It is highly unlikely many committed no voters would change their minds if this were an amendment to Article 40.1 rather than Article 41.
What do the relevant provisions do?
Article 40.1 guarantees equality before the law for all citizens. A proviso to Article 40.1 allows for differential treatment having regard to differences of capacity, physical and moral, and of social function. Article 41 provides important protections for the family and marriage. It also addresses divorce and the role of women and mothers.
Does this issue really matter?
In some respects, no. It is important to bear in mind that the Constitution is a document of many interlocking parts. The courts do not interpret its specific provisions in isolation, but seek instead to interpret it in a harmonious fashion. In other words, each part of the Constitution is informed by and must be read in the light of the other parts and of the document as a whole. As such, it is unlikely to make much difference if the amendment were to be made to Article 40.1. If Article 40.1 guaranteed equal access to marriage, the protection for marriage contained in Article 41 would clearly have to be read in the light of the statement regarding equal access to marriage in Article 40.
Is Article 40 a more appropriate site for this amendment?
Arguably, no. It makes little sense to offer protections for marriage in Article 41, and then define marriage in Article 40. Article 40.1 deals with the general principle of equality. Article 41 deals specifically with the family and marriage. The two are linked - the constitutional family is exclusively that based on marriage, whether or not the married couple have children. It hardly makes sense to address some aspects of marriage in one article and others in a separate article. Logically, the amendment is better placed in Article 41.
But doesn't Article 41 deal with children?
You're probably thinking of Articles 42 (Education) and 42A (which applies to all children, whether born within marriage or not). Article 41 mentions children in the context of divorce. It also speaks of mothers, though it is arguable that the reference is not confined to mothers in a marital union. It is clear, however, that Article 41 and the protection offered to the family applies to married couples without children (Murray v Ireland). Therefore a married couple can be a family for the purpose of Article 41, even without children.
Does Article 40.1 offer more robust protection than Article 41?
Absolutely not. The family protections in Article 41 are robustly applied. While they are not absolute, a compelling case must be made in order to whittle down the protection offered by Article 41.
By contrast, while the equality guarantee has been successfully invoked in some notable cases, it is widely regarded as a comparatively weak guarantee. It has proven most effective in challenging gender discrimination and discrimination in the political context. Nonetheless, it can be easily overridden. Rather weak justifications have often been accepted by the courts as negating claims that Article 40.1 has been breached.
Notably, Article 40.1 was unsuccessfully invoked in David Norris' challenge to the criminality of homosexual acts and in the challenge to the ban on recognition of the marriage of Senator Katherine Zappone and Dr Ann-Louise Gilligan. Indeed, Article 40.1 has been of little or no use to the LGBT community in asserting equality claims. It was unsuccessfully pleaded, also, in Somjee v Minister for Justice, where the High Court upheld a law that exempted women only (and not men) married to Irish nationals from the normal requirements for citizenship. It was also unsuccessfully employed in a challenge to a law that specifically exempts girls under the age of 17 from criminal liability in respect of an act of sexual intercourse with a boy under 17.
To be fair, Article 40.1 has been successful in challenging some forms of discrimination, mainly on the basis of gender and in the political context. For instance, Laffoy J in SM v Ireland deployed Article 40.1 to declare unconstitutional a law that penalised indecent assault more rigorously where the victim was male as opposed to female. Nonetheless, there are plenty of examples on the other side of the line, for instance, in cases where deserted husbands have been denied the same treatment as deserted wives. (Lowth v Minister for Social Welfare).
Article 41 can be used to override Article 40.1
Indeed, on a number of occasions the marriage protections in Article 41 have been used to override the equality guarantee in Article 40.1. Senator Zappone and Dr Gilligan challenged the ban on the recognition of their marriage partly on the basis of the equality guarantee. Dunne J rejected this contention, concluding that
"...if there is in fact any form of discriminatory distinction between same sex couples and opposite sex couples by reason of the exclusion of same sex couples from the right to marry, then Article 41 in its clear terms as to guarding the family provides the necessary justification."Likewise, in O'B v S a law that discriminated against children born outside of marriage was upheld on the basis that it was justified (though not mandated) by the constitutional clause (Article 41.3) protecting the institution of marriage. The Status of Children Act 1987 eliminated this discrimination but the decision makes it clear that constitutionally speaking, the State could have continued to discriminate if it had wished to do so.
In summary, it makes most sense in this context to amend Article 41 rather than Article 40.1
Attempts to move the clause to Article 40.1 are possibly underpinned by a misguided concern to confine the family to that based on heterosexual marriage. Ironically, then, attempts to move the amendment to the equality guarantee appear to be based on a desire to entrench inequality. It is arguable that the definition of marriage in Article 41 would have to be read in the light of any amendment to Article 40.1 anyway, so it is doubtful such an amendment would have this effect.
[I am grateful to John James Hickey, William Quill and Susan Whelan for sharing their thoughts on this matter. I take full responsibility, however, for the content of this blog.]