Tensions have emerged in Ireland’s ruling coalition government between the dominant Fianna FÁil party and the smaller Green Party over an unlikely issue: what form promised legislation on domestic partnerships should take. The conflict is symptomatic of a wider debate taking place in Ireland on proposed legislation that could dramatically change the character of Irish society.
The Greens, vehemently opposed to Fianna FÁil before last May’s general election, were forced to swallow their pride days after the election: six of their legislators joined with Fianna FÁil’s 78 legislators and a gaggle of independents to win a parliamentary majority and form Ireland’s 27th government since independence from Britain in 1922.
But prior to the election, the Green Party, made up largely of a combination of environmentalists and anti-war campaigners, sought to broaden the appeal of the party and win the support of social liberals. The party promised that, if part of the new government, they would introduce legislation “to allow same-sex couples to enjoy the equivalent rights and responsibilities of marriage afforded to heterosexual couples, should they so choose.”
The party also promised to “go further and permit the removal of all gender- specific terms from current legislation and regulations governing the granting of marriages.”
The proposal won huge backing from homosexual lobby groups, who were angered that the previous coalition government, also led by the conservative Fianna FÁil party, had defeated an attempt by left-wing opposition parties to introduce gay civil union legislation in 2006.
When it came to forming a government after last May’s election, a bland promise to introduce “civil partnership legislation” was hammered out between the two parties. Tellingly, it was the last sentence in the 34,000-word Programme for Government. For gay activists, it was a far cry from the “equivalent rights and responsibilities of marriage” promised by the Green Party.
Now Senator Dan Boyle, a key member of the Green Party coalition negotiating team, has admitted that his party will not be able to win the support of Fianna FÁil to bring forward legislation on gay marriage. For his part, Green Party legislator CiarÁn Cuffe has also confirmed that the introduction of legislation allowing civil marriage for same-sex couples did not have the majority backing of the government.
He said that he and his party backed marriage for gay and lesbian couples but did not have the support in government of the majority partner. Cuffe said his party had been putting pressure on Fianna FÁil to introduce civil marriage legislation. “At the end of the day politically it boils down to six versus 78,” he said.
THE IRISH CONSTITUTION AS OBSTACLE
What the government has vowed to deliver, however, is the promised civil partnership legislation. What form this legislation will take and whether or not it will weaken the constitutional position of marriage remain to be seen.
Same-sex couples say civil partnership will not guarantee the same rights as civil marriage, and are calling for parity with the rights of married heterosexuals.
The Constitution commits the state to “guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”
David Quinn, director of the promarriage think-tank the Iona Institute, told CWR that “the entire argument hinges on whether or not the proposed legislation will undermine marriage.”
“Even if it describes ‘domestic partnerships,’ if the legislation grants marriage- like benefits to unmarried couples, whether same-sex or heterosexual, this will inevitably weaken the protection the Constitution grants to the traditional family based on marriage between a man and a woman,” Quinn said.
Activists in favor of gay marriage have been reluctant to consult the Irish people on their proposal. Such a referendum, all sides concede, would be defeated by an overwhelming majority. GrÁinne Healy, co-chair of the gay and lesbian pressure group Marriag- Equality, wants such a decision to be made by legislators alone, over the heads of the people.
“Throughout the debate on the subject, the Constitution had been presented as an unmovable obstacle to civil marriage for gay and lesbian couples,” she said. “Instead of presenting a constitutional referendum as a fait accompli, politicians should find out first by amending the 2004 [civil registration] act and then see what happens. This would be progressive and brave legislating on behalf of all citizens.”
The 2004 act to which she referred governs the current civil marriage regime in Ireland, and gay activists believe civil marriage could be opened to gay couples without a constitutional amendment. But the Supreme Court has yet to rule on whether or not marriage, as defined in the Constitution, is understood as a union between a man and a woman. The text itself is not specific, but, having been adopted in 1937, most commentators accept that the framers would have never intended anything other than for marriage to be between a man and a woman.
A lesbian couple, “married” in Canada, are currently arguing before the Irish Supreme Court that their marriage ought to be recognized in Ireland. An earlier High Court challenge failed with the court ruling that the Constitution only recognized marriage between a man and a woman. A decision is expected from the Supreme Court within the next 12 months. Legal experts are virtually unanimous in their belief that the Supreme Court will uphold the earlier decision of the lower court.
Civil partnership legislation is also stalling. Tanaiste (or deputy prime minister) Brian Cowen admitted during a February parliamentary debate that the domestic partnership legislation is taking longer to frame than had been expected. A much-touted summer deadline for publishing the proposed legislation looks almost certain to come and go without the bill seeing the light of day.
WHAT IS MEANT BY CHILDREN’S RIGHTS?
The delay comes as another setback to liberal parliamentarians who are still upset by an indefinite delay in holding a constitutional referendum on their left-wing conception of the rights of children. Pro-family campaigners have been suspicious of this proposal, fearing that it may undermine the rights of parents.
Professor Patricia Casey of University College Dublin (UCD) has warned that the government “must ensure that its proposed referendum on children’s rights does not give the state unnecessary powers of intervention at the expense of the family.” She says “that the family is generally the place in which the interests of children are best protected. Any undermining of this presumption, even if unintentional, would ultimately be harmful to children,” adding that the “wordingshould ensure that the legal system continues to presume in favor of the family when the best interests of children are being considered.”
Casey’s comments echo the view of Supreme Justice Adrian Hardiman that the Constitution “does not favor parents over children, but that it favors parents over third parties such as the state or the Church.”
The idea of a constitutional amendment that would ensure that the interests of a child prevail was first raised in 2006 following a Supreme Court ruling that a two-year-old girl be returned to the custody of her birth parents. The girl, known as Baby Ann, was offered up for adoption by her parents, who were unmarried at the time. The parents withdrew their consent for the adoption and married a month before the High Court proceedings. The fivejudge court unanimously upheld an appeal by the natural parents of the girl against a High Court decision directing that Ann remain with her would-be adoptive parents.
The Supreme Court ruled that the child must be returned to her natural parents on a phased and sensitive basis to be decided by the court in line with professional advice.
A crucial factor in the court’s decision, Justice Catherine McGuinness noted, was that, in light of her birth parents’ marriage and the provisions of the Adoption Act, there was now “no realistic possibility” that Ann could be adopted by the couple.
Children’s rights groups have argued that the judgment highlighted the need for a change in the Irish Constitution to provide for children’s rights. The Children’s Rights Alliance’s chief executive, Jillian van Turnhout, said, “The child is the greatest loser as her rights were not and could not be taken into account by the Supreme Court.” She called for “urgent reform to ensure that when next the courts are faced with a decision on a child’s welfare that they have the power to, and moreover are obliged to, put the child’s best interest at the center of the case.”
Professor Casey has insisted that any proposed amendment “should ensure that the legal system continues to presume in favor of the family when the best interests of children are being considered,” noting:
Generally society has judged that parents should decide what is in the best interests of their children. First of all, they are the parents, the people who brought the children into the world. Secondly, they are likely to know their children better than anyone else, and certainly better than a third party such as a state agency. Therefore they will likely be the best judge of when their child is old enough to enjoy some or all of the choice rights, and to what degree, associated with adulthood. Third, allowing parents to decide what is in their child’s best interests set down limits on the power of the state and prevents the state from intervening in family life unnecessarily.
Since the government is more concerned, in the short-term, with the passage of the European Union’s Lisbon Treaty in a summer referendum, no one expects a proposal on children’s rights to be put to the people before 2009. Yet the issue of domestic partnerships is set to come before parliament within months.
The Department for Justice, Equality, and Law Reform has been reluctant to set a date for legislation. The legislation may well prove to be a legal minefield with backbench legislators from the main parties promising to oppose any legislation that will undermine traditional marriage.
Dr. Martin Mansergh, a senior government backbencher and former special adviser to three successive Taoisigh (prime ministers), told CWR: “Two issues of principle require reflection. First, whether the primacy of marriage under the Constitution should be maintained and, if so, what that might mean in practice vis-À-vis civil unions or partnerships, and, second, the importance of equitable treatment of all who live together, including, for example, siblings, who are debarred from participation in partnership arrangements.”
“With regard to the latter, it is indispensable that siblings living under the same roof should enjoy no less favorable tax arrangements on the decease of one of them than any other cohabiting couple. I would favor complete equality in all non-marital domestic partnerships,” Mansergh said.
For example, the rights of elderly siblings living together or a mother and son living together in a so-called “caring and dependent” relationship will receive attention in the debate. Ireland remains a largely rural country and legislators are unlikely to support any legislation that discriminates against such families in favor of same-sex couples.
Mansergh said any proposed domestic partnership legislation should be non-conjugal. “In the case of civil partnership there should be no necessity for there to be a physical relationship, though of course the public may tend to draw its own conclusions,” he said. “It is important that any legislation on civil unions or partnerships does not bring the state into the bedroom.”
Mairead Lavery, a journalist with the Irish Farmers’ Journal, a newspaper aimed at Ireland’s rural community, agrees.
“There are many people living together in Ireland who are not in a sexual relationship; if there are to be legal benefits attached to non-married people living together, then people—for example, two farming brothers—should not be unfairly disadvantaged,” she said. “If there is to be legislation, I would like to see the rights of such people taken into account.”
Activists on both sides of the debate are bracing themselves for bruising debates on the issue of children’s rights and on civil partnerships. The various cultural wars fought in many other Western countries have come to Ireland, and over the next year they will be on vivid display.
David Quinn of the Iona Institute is engaged in an intensive campaign to lobby legislators on these issues.
“Many people would not accept that a cohabiting relationship, heterosexual or gay, is an ideal just as worthy of promotion by educators as marriage,” he said. Marriage as a social institution was designed primarily to ensure “that as many children as possible are raised by their mothers and fathers,” and therefore is “intrinsically heterosexual,” he said.
“Allowing same-sex marriage would show that both the state and society had lost sight of this fundamental reality. It would amount to a statement that marriage is really a vehicle for supporting adult sexual unions and is only incidentally about children, or it would be saying that children don’t really need a mother and father nor do they have a right to a mother and father,” he said.
Even in Ireland’s increasingly secularized state, this remains a delicate area and any proposed legislation is sure to prove inflammatory. Ireland’s written Constitution is remarkably detailed and a substantial change would require an amendment, a goal that social liberals are unlikely to achieve in a popular referendum.
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