The Ryan Line - Random Musings on Law and Life

One of the issues that has arisen in the context of the marriage referendum is the precise part of the Constitution in which the proposed amendment should be placed. The proposal is that a new Article 41.4 be inserted into the article in the Constitution that deals with marriage and the family. Some on the no side argue that the amendment should have been placed in Article 40, which deals with personal rights and, in particular, in the subarticle dealing with equality (Article 40.1).

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?
…

It’s fairly de rigueur with referendums for the discussion to veer towards issues that in fact have little to do with the referendum or are only tangentially relevant. This is no less the case with the marriage referendum. 

Here is a list of things the referendum does not concern:

1. Religious marriage

The referendum addresses civil marriage only, marriage in the eyes of the State. The referendum will not affect the practice of churches in relation to marriage. Churches are now free to refuse to marry whomever they wish. This will remain the case if the referendum passes. The Draft Marriage Bill 2015 confirms that no religious minister or church will be compelled to marry any two persons as a result of the passage of the referendum. Churches will be allowed to celebrate marriages of same-sex couples, but only if they wish to do so. There is already an exemption in the Equal Status Act 2000 that allows discrimination on the religion ground in the provision of religious goods and servi…

The marriage referendum, scheduled for May 22, is now less than 4 weeks away.

I want here to dwell on a particular No side poster (from Mothers and Fathers Matter). It states "We already have civil partnerships; don't redefine marriage".

I am intrigued, in particular, by the 'we'. Who are this 'we'? What does this mean?

Are 'we' everybody?
If the 'we is 'we' as  in 'the public' at large, in fact 'we' don't all have civil partnerships. Only unrelated couples of the same-sex may enter into civil partnership. There is no requirement, admittedly, that the couple be gay. Yet, barring unusual circumstances,* it is very unlikely that many straight people have partaken of civil partnership, not least because it forecloses the possibility of a marriage to an opposite-sex partner.

Are 'we' heterosexual?
If the 'we' means (as it often means) heterosexual couples and heterosexuals generally, then the 'we'…

A short while back I wrote about the remaining differences between civil partnership and marriage. One key difference relates to ending a civil partnership. In short, it is a good deal easier to end a civil partnership than a marriage.

This might sound like an advantage for civil partners, but it arguably underpins the lesser status of civil partnership and the lower regard in which it is held.

Ending a marriage in Ireland is a serious business. The conditions for divorce are laid out in the Constitution, no less, and reinforced by legislation. They cannot be watered down without a further referendum.  You have to have been living apart for 4 of the 5 years immediately preceding the date of the application for a divorce. You have to satisfy the judge that there is no reasonable prospect of reconciliation. You have to show, also, that proper financial provision is made or will be made for both spouses and any children of either or both spouses.

Additionally, as a precondition to lodgi…

What is civil partnership?

Civil partnership was introduced in 2011, under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

Civil Partnership is confined to same-sex couples only. Both parties must be aged 18 or over, and must not be closely related to each other. They must not already be in a civil partnership or marriage with other people. The process of entering into a civil partnership is very similar to marriage except that there is no facility for recognising a church ceremony. While there is nothing in the Act saying that you must be gay or bisexual, civil partnership legislation was clearly designed to facilitate the formalisation of same-sex romantic unions. Civil partnership confers most if not all of the rights and obligations associated with marriage, though there are some significant exceptions (discussed here).

What will happen to civil partnership if the marriage referendum passes?

The Draft General Scheme of the Marriage Bill 2015 indicat…