Constitution is not an obstacle to legalising gay marriage

OPINION: The Government can legislate for same-sex marriage without holding a referendum

EVERYONE IS familiar with the way rumours can spread to the point where complete fiction is related as gospel truth. A similar but lesser-known phenomenon is a “cascade”: one person, usually high-profile and influential, states as fact something contestable or even incorrect. This statement is accepted and repeated by others who have not checked whether it was well-founded. In time the initial statement comes to be regarded as uncontroversial and even self-evident.

I would argue that this has happened with respect to the issue of whether legalisation of same-sex marriage requires a constitutional amendment (and so a referendum). After Katherine Zappone and Ann Louise Gilligan lost their High Court case seeking recognition of their Canadian marriage in 2007, the late Brian Lenihan, minister for justice at the time, stated it was his “strong belief, based on sound legal advice, that gay marriage would require constitutional change”. This view has since been repeated ad nauseam by politicians queuing up to make the point in the past week.

We have now reached a stage where a majority of politicians in the Oireachtas favour same-sex marriage. The Taoiseach may have refused to be drawn on the matter, but Labour, Fianna Fáil, Sinn Féin and the United Left Alliance have all committed themselves to marriage equality. Fine Gael has yet to take a position as a party but in the past week TDs such as Alan Shatter, Leo Varadkar, Damian Enright and Jerry Buttimer have spoken publicly in favour.

The stumbling block identified by all parties is the Constitution, which in Article 41.3 pledges the State to “guard with special care the institution of marriage, on which the family is founded, and to protect it against attack”. (The Constitution also pledges, in Article 40.1, “All citizens shall, as human persons, be held equal before the law.”) Nothing in this sparse text defines marriage as one man and one woman, and the equality guarantee suggests limiting access to marriage on grounds of sexual orientation is discriminatory.

Same-sex marriage was clearly not contemplated when the Constitution was drafted in 1937. However, it has always been accepted by Irish courts that the Constitution, with its vague language, is to be interpreted in light of conditions in society today, and not by reference to opinions and standards in 1937. An analogy can be found in the reference to “free primary education” in Article 42.4. No one in 1937 thought this included the right of severely disabled children to services such as speech therapy; but because of changed standards and opinions in society the courts ruled in 1993 that the right to education should be extended to include such children and such services.