With Spain legislating on the issue, the Irish gay community is debating what form same-sex unions should take, reports Brian Finnegan.
With the Spanish parliament voting on a bill yesterday that could make Spain the third country in Europe to allow gays and lesbians to marry - behind Belgium and Holland - the rest of the European Union is coming under pressure to make gay marriage legal.
Proposed legislation for gay marriage was approved by the Spanish socialist cabinet yesterday and will now go to parliament. With 70 per cent of the Spanish population supporting gay marriage, it is expected that legislation will be put in place by the end of this year.
Meanwhile, it was announced last month that two couples are preparing to go to the European Court of Human Rights to have gay marriage declared legal in the EU. The couples claim that a ban on one gay partner working in Austria, and the annulment of a gay marriage in France, respectively, are clear violations of EU law, although the European Court has not yet recognised the right to marriage for gay couples.
Behind the scenes in the global gay community, a debate is in full swing about exactly what lesbians and gay men want, as opposed to what they can actually get in terms of partnership rights. While the more militant factions are fighting for full and equal rights, based on the heterosexual model of marriage and family, the more moderate and dominant approach, successful in seven other EU countries, has been to seek legislation based on civil unions for gay couples. These would give them similar, but not always equal, rights to those of married heterosexuals.
The moves towards gay marriage in Spain have angered the Pope, who, in June, publicly told prime minister José Luis Rodriguez Zapatero that the Spanish government must "give due attention to ethical values that are so rooted in the religious and cultural tradition of the population".
This personal rebuke is part of the Catholic Church's vigorous and vociferous anti-gay marriage campaign, which in other cases has repeatedly blurred the lines between marriage and civil union. In September, the pontiff told New Zealand bishops that efforts to equate marriage between man and woman to other forms of cohabitation violated "God's plan for humanity".
Meanwhile, George Bush's similarly confusing campaign and rhetoric, a political bid to court the evangelical vote in the forthcoming US presidential election, has led an increasing number of gay men and lesbians to stand up for full marriage rights rather than just civil union.
On home ground the debate about same-sex marriage is in its infancy, but over the coming year, with Senator David Norris's Partnership Bill due to be discussed in the Senate, the issues will begin to be teased out.
FIRST UP ON the anti podium last week was former taoiseach John Bruton TD, whose Fine Gael party produced the nation's first policy document on civil partnerships in July this year, advocating a measure of equal rights for cohabiting couples, including same-sex partners. Bruton claimed in the Irish Catholic that to enshrine similar rights, concessions and protections for same-sex couples in law, the Irish constitution will have to be amended, which will need a referendum.
He wrote that civil unions open to same-sex couples "would undermine Article 41 of the constitution, which says: 'the State pledges to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack".
This is an interesting, if ultimately misleading, turn of events. Usually the strategy of the right in the fight against gay rights is to call upon moral principles, but by appealing to an electorate sick and tired of referenda, Bruton has moved the argument into a more practical arena, seemingly free from the moral confusion surrounding the marriage-versus-civil-union issue.
"Bruton is, of course, completely wrong about this," says Trinity law lecturer Ivana Bacik, who is currently working on Norris's Partnership Bill. "While the Supreme Court has, unfortunately, consistently said that this means that the only constitutionally protected 'family' is that based upon marriage, there is nothing in this Article to prevent the creation in legislation of a class of registered domestic partnership that would give cohabitees most of the protections available to married couples, but not equate to marriage. Such a partnership law would not transgress the constitution, once it didn't give cohabiting partners any greater advantages than those available to a married couple. They would simply be recognised in legislation.
"Under European law, where cohabiting heterosexual couples are given certain benefits, the same benefits must be given to cohabiting same-sex couples."
Earlier this year, the law reform commission's consultation Paper on the Rights and Duties of Cohabitees - which recommended legal reforms relating to taxation, inheritance, pensions and healthcare for couples who had cohabited for three years or more, including gay couples - stated that Article 41 did not prevent the Oireachtas from legislating in respect of cohabitees, so long as the legislation did not grant cohabitees more extensive rights than those enjoyed by married couples.
BUT IN THE drawing up of such legislation, attitudes to gay partnership could possibly produce a stalemate. While Fine Gael's policy document on civil partnership proposes a whole range of rights for cohabiting couples, it contains the following statement: "Fine Gael fully supports the institution of marriage. For the majority of people, it is seen as the best model in which to raise children and marriage will continue to confer rights upon parents that civil partnership does not."
For the millions of cohabiting couples with children, this statement is unacceptable, but the wording was specifically intended to counter arguments against gay men and lesbians having equal rights as parents to those of heterosexuals, one of the most incendiary elements of the whole debate.
In Britain, where legislation is under way to formalise same-sex civil unions, 70 gay couples took part in a marriage ceremony at the end of August in Manchester.
"The ceremony was a chance to celebrate our love and campaign for the right to marry, so that we are treated equally," said Rev Andy Braunston, of Manchester's Metropolitan Community Church, who presided over the ceremony with a religious blessing.
If the EU rules in favour of same-sex marriage in the forthcoming French and Austrian cases, it can exert pressure on EU countries to amend their laws to fall in line and recognise marriage, rather than just civil union, for same-sex couples.
However, if the Republic was to go down this route, a constitutional referendum would have to be called to change the definition of the family. Because such a referendum would probably fail, gay rights groups in this country will be fighting for the civil union model, albeit with many controversial rights entailed, including parental rights and the right for non-EU partners to reside and work in Ireland.
"I believe that the right to marry in Irish law should be extended to all couples, whether same-sex or opposite-sex, as it has been in other countries," says Ivana Bacik. "However, as a first step, I favour the introduction of a civil partnership law.
The bill that Senator David Norris and others, including myself, are currently working on would provide those protections without altering or affecting the definition and status of marriage. It deserves to win wide cross-party political support."
"Civil union is the most sensible solution to the real problems that a significant number of people face in this country," says Kieran Rose, of the Gay and Lesbian Equality Network. "We're looking for a practical victory rather than an ideological one."
Brian Finnegan is the editor of Gay Community News in Dublin