Same-sex marriage referendum: a legal review

The amendment to be put to the people in the marriage equality referendum reads as follows: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

The existing text of Article 41 will all remain as it currently stands; the provision will be added as a new section numbered Article 41.4.

The wording should be welcomed by proponents of marriage equality. Its legal effect appears to be exactly what they have campaigned for, and the formulation seems politically astute, which should maximise its chances of being approved.

First, the wording delivers on full marriage equality, with no room for ambiguity. The institution of Marriage referenced in Article 41.3, on which the Family is founded and which the State pledges to guard with special care and protect against attack, will clearly be open to same-sex as well as opposite-sex couples.

Protection

Article 41 will give constitutional protection to both opposite-sex and same-sex marriages. There is no question of the wording falling short of its intended purpose, unlike (for example) the referendum on children’s rights, which was largely symbolic and contained few concrete legal reforms.

Second, the provision is self-executing. It doesn't merely give the Oireachtas the option of legislating for marriage equality, or require legislation to implement it. There is no use of the phrase "provision shall be made by law".

The wording makes it a constitutional principle that the sex of the parties may not be a basis for restricting access to marriage. If nothing else was done, the amendment would simply render section 2(2)(e) of the Civil Registration Act 2004 unconstitutional (and therefore void) as soon as it is signed by the President, and same-sex couples would be able to marry in the same way as opposite-sex couples.

Third, the amendment makes it clear that marriage is between two people. This immediately defuses any potential opposition focused on the issue of polygamy, which could not be introduced without a further referendum amending this new provision.

Other impediments

Fourth, the phrase “in accordance with law” makes it clear that other legal impediments to marriage, such as age, marital status or prohibited degrees of relationship, may remain in place. The only existing barrier that will no longer be an option is that the parties are of the same sex.

Fifth, the reference to marriage being “contracted” clarifies that the amendment relates to the civil law marriage contract, and not to the religious sacrament of marriage. This forestalls any possible opposition based on the amendment being an attack on religious freedom.

Finally, the amendment is clear, brief and to the point. The experience of previous referendum campaigns is that confused voters are likely to either not vote or vote No. Convoluted wordings give oxygen to opposition arguments that refer vaguely to possible “unintended consequences” without defining what those consequences might be or how exactly they would arise.

The brevity and simplicity of this provision makes it extremely difficult for such arguments to be constructed.

Dr Conor O'Mahony is a senior lecturer in constitutional law at University College Cork Law School