As debate on the marriage-equality referendum continues it is relevant to remember that, in one of the unreported conflicts in this area, Catholic pressure to make Irish marriage law echo church law was rejected, at the last minute, after secret negotiations that lasted for a decade.
These talks, initiated in 1962 by Seán MacEntee, as minister for health, were intended to deal with two problems.
One was easy: the “Lourdes marriages”. Many Irish couples had married in Catholic ceremonies in the pilgrimage town without realising that, to be recognised in French law, they each also needed to take part in a civil ceremony. That meant their marriages were technically invalid under Irish law, too. The Oireachtas solved the problem with some retroactive legislation.
The other, which at first sight looked almost like a bit of bureaucratic tidying up, suddenly revealed itself as bristling with difficulties. The issues were what the minimum age for marriage should be, whether exceptions could be allowed and, if so, who could authorise any exception: the churches or the State?
There had been discussion about this since 1957, when a number of organisations, including the Mothers’ Union and at least one Catholic women’s group, had asked the minister to raise the minimum age for marriage to 16. There was no statutory minimum, but common law held it to be 14 for boys and 12 for girls.
Between 1961 and 1963, 129 marriages had involved 14- or 15-year-olds, and 25 babies had been born to 13- or 14-year-old girls. At least one of these marriages had been covered by Sunday newspapers in the UK – where the minimum age for marriage was a uniform 16 – in what MacEntee described as an “unsavoury or sensational” way. He believed that the coverage hurt Ireland’s reputation abroad. At the time Spain was the only other European country with such a low minimum age.
Canon law did not set a minimum age, but a bishop had to approve any marriage where the groom was under 16 or the bride was under 14. Now the Catholic hierarchy, MacEntee told his cabinet colleagues, “have pressed strongly for the omission of any lower age limit to the granting of permission. They stated that, with the improvement in the standard of living, the tendency is for young people to mature at an earlier age, and that it would be undesirable to set any arbitrary level below which it would not be permissible to grant permission for a marriage.”
MacEntee added, in words that underlined the potential threat, that the bishops “felt it was very important, if the agreement of the Hierarchy to this section of the Bill were to be secured, to avoid in such a delicate matter the conflict that would arise if the provisions of Civil and Canon Law were not in harmony.”
The other denominations were “strongly of the view that a girl or boy of less than 16 years of age was not mature enough to appreciate the gravity of entering into a life-long contract”. They pointed out to MacEntee that under-16s were forbidden to drive cars, to enter public houses, dance halls or bookmakers’ shops, or to do a variety of other things, none of them as important as getting married.
Neither Donogh O'Malley nor Seán Flanagan, who succeeded MacEntee as ministers for health, was able to conclude the matter. It fell to Erskine Childers, who took over from Flanagan in July 1969, to resolve this difficult issue.
In 1972 Childers introduced the Marriages Bill, which set the minimum age for marriage at 16. But a complicated provision in it allowed Catholic authorities to permit the (otherwise illegal) marriage of under-16s in certain circumstances.
The Dáil, predictably, passed the Bill. What could not have been predicted was what happened next. During the initial debate in the Seanad, after being accused of privileging religious authorities by giving them the right to make exceptions to the law, Childers could not have been more forthright.
“I do not intend in this Bill,” he said, “in any way to engage in any measure secularising the marriage ceremony. I wish to state this with absolute conviction. I am not going to take away from the religious authorities one iota of the main authority they have had in relation to the solemnisation of marriage.”
That declaration sat oddly, to put it mildly, with what Childers did at the beginning of the Seanad debate on the committee stage of the Bill. At this point, and without fanfare, he introduced a totally new section as an amendment. This removed the church’s power, and meant that the courts alone were to have the authority to dispense with the new minimum age.
Looked at through the long lens of history, two contemporary factors can be identified. One was the fact that during the second-stage debate in the Seanad, in mid November that year, Mary Robinson and I spoke strongly against the original section 1, and prepared amendments to it. These were withdrawn in the light of Childers's amendment, which we regarded as satisfactory.
Second, and probably more significant, was the fact that the country was in the middle of discussing the proposal to amend the Constitution to remove the “special position” of the Catholic Church – a measure over which Cardinal William Conway had said he “would not shed a tear”. That referendum was passed on December 7th, 1972, just after the Marriage Bill had passed through the Oireachtas.
MacEntee, who initiated the whole process, had been vindicated. In a 1962 memo to government countering criticism of his original proposals by the minister for finance, James Ryan, MacEntee wrote: “Article 44, though it recognizes the special position of religion in the life of the individual and the community and guarantees freedom of conscience and the free profession and practice of religion, nevertheless implies the full laicality [sic] of the State. It would be inconsistent with its character in this respect for the State to surrender to the Churches the authority to prescribe the conditions under which the civil contract of marriage may be validly entered into.”
If anyone had thought, even then, that this would be the last word on the topic, they would have been gravely mistaken.
John Horgan is a former Irish Times and Catholic Herald journalist; Labour Party senator, TD and MEP; professor of journalism; and press ombudsman
The National Archives of Ireland files used for this article, together with Dáil and Seanad debates, are S 17296A/62, TAOIS 98/6/643 and TAOIS/96/6/364