The Ryan Line - Random Musings on Law and Life

The Thirty-Fifth Amendment to the Constitution Bill 2015 proposes that the minimum age for the Presidency – currently 35 – be lowered to 21.Notably, 21 currently is the minimum age for election to the Dáil. The referendum is scheduled for May 22, the same date as the marriage referendum. So far, however, it has garnered much less attention than its counterpart.

The current minimum age requirement in Ireland mirrors similar provisions in the US Constitution, under which a candidate for President or Vice-President must be 35.The rationale behind the minimum age requirement would appear to be that the candidate should be sufficiently mature and experienced to hold office.Some commentators, indeed, quite fairly question whether 21 is too young to hold an office so prestigious as that of the Presidency. The matter was considered by the Constitutional Convention, though the outcome was equivocal. 50% of Convention members supported a reduction in the minimum age, but 47% were opposed; hardly…

A claim regularly made in the marriage referendum debate is that civil partnership should be sufficient for same sex couples and that there is no need to extend marriage to same-sex couples. Civil partnership certainly provides extensive rights and obligations. It offers equal treatment with marriage, for instance, in the context of taxation, social welfare, pensions, citizenship, immigration, property, domestic violence, and maintenance. Largely equal treatment applies in the context of succession (inheritance) and remedies following dissolution. It delivered a number of vitally important, and in some cases urgently needed protections for same-sex couples.
Civil Partnership differs from marriage, however, in a number of respects. Many of these differences initially related to children being raised by civil partners, though most of these particular differences have been eliminated by the Children and Family Relationships Bill 2015. Other differences in the original Act have been remove…

The Democratic Unionist Party in Northern Ireland is proposing an amendment to existing equality regulations in Northern Ireland. This relatively short amendment would allow a person in business to refuse on grounds of sexual orientation to provide goods or services or the use of premises where providing such good or services or use of premises would involve the person “endorsing, promoting or facilitating” a behaviour or belief that infringes that person’s strongly held religious convictions. It would also allow faith-based adoption and fostering agencies to turn away potential foster parents and adopters who are gay.

The proposed amendment is contained in the Northern Ireland Freedom of Conscience Amendment Bill. The Bill proposes to amend the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. Notably, the focus is solely on sexual orientation.  It does not propose to allow religious conscience to be invoked in other contexts, such as in relation to legislatio…

It has now become de rigueur in conservative circles to suggest that gay and lesbian people who wish to marry are perfectly free to do so. Marriage, it is argued, is open to LGB people on the same basis as for everyone else, namely that anyone is free to marry a person of the opposite sex.  (I'll address trans* people in another post, I promise!)  A person who is gay, conservatives argue, is free to marry a person of the opposite sex and is therefore not barred from marriage.  Thus, they maintain, there is no unequal treatment. 

With respect, this is a deeply disingenuous argument.  It is hardly addressing the point to argue that a lesbian woman, in a long-term relationship with another woman, is perfectly free to leave her partner and marry some random man.  It is flippant, irresponsible, and deeply dismissive of the experience of being lesbian or gay.

The argument, moreover, does not stand up to legal scrutiny.

It is well established from case law that a heterosexual marriage …

An opinion piece in a prominent mainstream newspaper this weekend past claimed that the proposed wording of the marriage referendum in Ireland would inadvertently outlaw heterosexual marriage. With respect, I believe that this view is wrong. Several prominent constitutional lawyers have confirmed to me that the claim is inaccurate.

Both the Irish and English versions of the referendum wording are, in my view, open to the interpretation that two persons who are of different sex from each other may still marry each other if the amendment is passed. While the amendment anticipates that they may be of the same sex, they do not have to be. Arguably, the wording could have been more explicit on this point. Yet even if you accept that there is some potential ambiguity here, the risk that the amendment will inadvertently ban marriage for opposite-sex couples is non-existent.

Even if the amendment could be read as applying to same-sex couples only, it is exceptionally unlikely – without v…

Following on from earlier posts, the UK Prime Minister, David Cameron, has publicly called for same-sex marriage in the UK. This may reflect, in part, the particular legal conditions in the UK, civil partnership being more or less identical in effects to marriage. Therefore the logic for maintaining the distinction, as noted in an earlier post, is weak to vanishing point. Even Prime Ministers can no longer stand over the distinction.

Nonetheless, the fact that a Prime Minister, a Conservative one no less, is willing publicly at his party conference to make such a pronouncement speaks volumes. It is particularly noteworthy given that this was the same party that sponsored the notorious section 28 of the Local Government Act 1988

I have argued elsewhere that this trend in favour of same-sex marriage reflects as much a conservatisation of gay discourses as a liberalisation of straight sentiment. Marriage, after all, involves the acceptance of serious mutual inter-personal obligations that …

Tom and Katherine want a civil partnership. But the UK government won't let them register. Why? Because they are not of the same sex, as required by UK law. Sounds familiar?

Currently, in UK law, marriage is reserved to opposite sex partners. A largely identical form of civil partnership is available to same sex couples. The legal incidents of each are largely identical. There are very few, minor, technical differences but to all intents and purposes marriage in the UK is more or less the same as civil partnership.

How can it be appropriate to have two similar yet distinct systems for the civil recognition of these two like categories? As the U.S. Supreme Court observed in Brown v. Board of Education of Topeka, 347 US 483 (1954), ‘separate but equal’ policies necessarily imply that the State does not really think that the subjects of the differentiation are alike. In setting same-sex partners apart from married couples is Parliament not really saying that gay couples are not so equ…

The European Court of Human Rights has ruled that the banning of several Gay Pride marches in Moscow contravened the European Convention on Human Rights. (Alekseyev v. Russia).

The Court found that the actions of the Government of Moscow in blocking gay pride parades constituted a breach of Article 11 of the Convention, which guarantees freedom of peaceful assembly and association. The Mayor of Moscow, in particular, had vigorously opposed the marches, instructing his officials to do everything in their power to prevent them from taking place. The mayor's office thus refused permission for a march in 2006, in 2007 and again in 2008. It cited public order concerns, as well the need to protect the health, morals of society and the rights and freedoms of others. It also noted the risk of riots and counteractions directed against the parade participants.

The mayor, though proclaiming his alleged tolerance of private conduct, noted "that 99.9% of the population of Moscow supported …

The UK Supreme Court has ruled that pre-nuptial agreements may be enforced in law, in appropriate cases.

Katrin Radmacher and her husband, Nicolas Granatino married in 1998. They have two young daughters. At the time of the marriage, they agreed that, if the marriage failed, they would not seek financial support from each other. Radmacher, heiress to a German paper company, is reputed to be worth E120 million. Her husband, by contrast, gave up a lucrative post in an investment bank in 2006 for a more modest post as a researcher.

Ms. Radmacher claimed that the agreement was made at the insistence of her father, who wished to protect her inheritance. She felt that the agreement also underlined that the couple were marrying for love and not for financial gain.

For his part, Mr. Granatino claimed that at the time of the marriage, he was not aware of the extent of his wife's wealth. He asserted also that he had signed the agreement (which was in German) without the benefit of eith…

News that Australian actor Portia de Rossi (of Arrested Development fame) has taken her wife Ellen DeGeneres' surname casts an interesting new twist on a old dilemma: should a wife take her spouse's name?

Portia de Rossi married Ellen de Generes in the wake of the decision of the California Supreme Court in In re Marriage Cases (2008) 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, which opened up marriage to same-sex couples. While proposition 8 restored the former ban on same-sex marriage, the Supreme Court decision in Strauss v. Horton 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48 confirmed that the c. 18,000 same-sex marriages contracted in the interim would remain valid.

Now, Portia has changed her surname to De Generes, to match that of her wife. An LA court recently approved the proposed name change. Incidentally, this is de Rossi's second name change - she was raised as 'Amanda Lee Rogers' but adopted the moniker by which she is better known at the p…

I have a stock answer when asked what proportion of the population is gay - a lot more than most straight people think, and a lot less than most gay people think.

The British Office for National Statistics is a good deal cleverer and less glib than I. It has published an estimate of the number of gay and bisexual (LGB) people in the UK.

The ONS - rather bravely - asked approximately a quarter of a million Britons aged 16 or over about their sexual orientation.

The results? 1.5% identified as lesbian, gay or bisexual (1% as gay, 0.5% as bisexual). Another 0.5% stated 'other' while 2.8% refused to answer or stated that they did not know. An additional 0.5% did not respond to the question. Notably, London reported the highest LGB presence, while Northern Ireland was lowest at 0.9%.

The survey also revealed some notable differences between the average LGB person and his or her straight equivalent. Globally, LGB respondents were, on average, more likely to be employed, more likel…

The Guardian is reporting a plan to allow those of orthodox jewish faith in Jerusalem to travel in gender-segregated carriages:

http://www.guardian.co.uk/world/2010/aug/23/jerusalem-segregated-train-carriages

In some cases women are already required to travel in the rear of some designated buses, to meet the concerns of some Orthodox Jews. The report underlines the often tense relationship between gender equality and promoting respect for genuinely held religious values.

According to the BBC website, an Australian judge has ordered a female witness in a fraud trial to remove her veil while testifying in court. The woman, who is Muslim, wears the full niqab which covers all of the face except the eyes, in preference to the hijab worn by many Muslim women:

http://www.bbc.co.uk/news/world-asia-pacific-11020700

The judge's concern is a legitimate one. A jury should be able to observe the facial expressions of a witness. Indeed, facial expressions often convey much more than the spoken word.

On the other hand, the Koran ordains modesty in dress:

"Tell the faithful women to lower their gaze and guard their private parts and not display their beauty except what is apparent of it, and to extend their scarf to cover their bosom". Koran, 24:31

There are strong differences of opinion as to what this requires. Moderate muslims take the view that the niqab is not required, and that all the Koran stipulates is that a woman wear modest dress, covering h…

Many states offer asylum to people who claim that they are likely, if returned to their home country, to suffer persecution on the grounds of their sexual orientation. As exhibited by recent events in Malawi and Uganda, many countries still view homosexual identity as anathema, and seek to criminalise even private, consensual adult expressions of affection between persons of the same sex. (Before rushing to condemn such states, it is worth recalling that it is less than 20 years since Ireland removed similar laws from its statute books.)

Happily, the Refugee Act 1996 expressly mentions 'sexual orientation' as one of the grounds on which a person may plead that they will be persecuted if returned to their country of origin. The Irish Act expressly defines "membership of a particular social group" as including membership of a trade union as well as "membership of a group of persons whose defining characteristic is their belonging to the female or the male sex or …