Civil Partnership was set up for gay couples. Isn’t that enough?
The Civil Partnership Act 2010 introduced civil partnership, which may be availed of by, and only by, same-sex couples. People in a civil partnership are treated in the same way as married couples in relation to a range of matters, including social welfare, tax, immigration, pensions, remedies on the legal dissolution of the relationship, and protection against domestic violence.
However, a Civil Partnership does not enjoy the protection that our Constitution gives to Marriage. Families based on marriage have special protection under the constitution, which prevents governments introducing laws that would undermine or weaken them, including discriminatory taxation.
Civil partners and their children are not currently a ‘family’ for the purpose of the Constitution. For children being raised by civil partners, the protection of the family provisions of the Constitution is thus denied permanently. While this is also the case for cohabiting couples and their children, heterosexual cohabitants may remedy this problem by marrying.
Will this vote also change religious marriage?
The institution of civil marriage, which is protected under the Constitution, and the religious understanding of marriage are entirely separate. There is no basis for the concern which has been expressed that religious clergy may, against their religious beliefs, be required to perform same-sex marriages. This referendum relates to civil marriage only, just as the divorce referendum in 1995 only allowed for the dissolution of civil marriage. The Bill which will give effect to the referendum if passed confirms that priests and other religious who marry people will not be obliged to perform same-sex marriages.
Will gay couples now be allowed to adopt children?
The Chairperson of the Adoption Authority of Ireland, Dr. Geoffrey Shannon, who is also a solicitor and child law expert, has said the result of the upcoming referendum will not affect the adoption process. He said “sole applicants have been in a position to apply to assess for adoption” since 1991, meaning a partner in a civil partnership can apply to enter the process, explaining that “the assessment would include both people”, but the order would be granted to one of the partners.
He added the recent Children and Family Relationships Act extends the right to assessment for adoption to civil partners and cohabiting couples who have lived together for three years.
This would mean the child would have a legal relationship with both partners in the relationship. Dr Shannon also said “the best interests of the child is the key requirement” when determining adoption applications.
Will this vote make surrogacy legal in Ireland?
The head of the Referendum Commission, Mr Justice Kevin Cross, a High Court judge, has said there will be no right to surrogacy as a result of the same sex marriage referendum. He said there will be no change to the current law regardless of the outcome of the referendum.
“There is not an automatic right to surrogacy – there is no right to surrogacy,” he said.
“At the present moment, surrogacy is not regulated at all.
“There is not right to access [surrogacy] in law, and there is no right to prohibit anyone accessing surrogacy.
“The Government has announced plans to regulate surrogacy. We don’t know how they will be regulated, but it is going to be regulated independent of the outcome of this referendum.”
Will this vote redefine marriage?
Some argue that if this referendum is successful it will redefine or devalue marriage. I disagree – I believe that is like saying that the founders of this State redefined or devalued democracy by extending the vote to non-property owners and to women. I cannot see how the outcome of this referendum will have any impact on any existing marriage. Nor can I see how a future marriage, whether civil, religious or both, between a man and woman be affected by allowing same-sex couples to have a civil marriage.
Why are we having this vote? Couldn’t politicians just change the law if they all agree with same-sex marriage?
In the presentations from legal and academic experts at the Constitutional Convention, the issue of whether a Constitutional amendment was required to introduce same-sex marriage or whether it could be introduced by legislative amendment does not appear to have been considered. However, in response to a question on the matter, one presenter, Gerard Durcan S.C. stated: “My view of the Case law which is there which is not perhaps definitive in having absolutely decided the issue but my view of the case law which is there is that it indicates and tends to the view that the Constitution is premised on a marriage between people of the opposite sex.
The Government has stated that a previous Government was advised by a previous Attorney General that a referendum would be required but that advice was never shared with the Dáil. It is true that Irish politicians run a mile from difficult social questions such as this one. On the other hand, there is a clear benefit on consulting the public on a change to a public institution such as marriage.