Marriage laws will be out of step with Constitution

In recent weeks, as questions were asked about the effects of the proposed amendment, the refrain that it was “about love and equality and nothing else” became ever more insistent.

Now, the harsh law of unintended consequences will outstrip any political reassurances. It will be interesting to see whether the Government will act decisively to resolve issues that would ordinarily have been teased out before a proposal was put to the people.

A major issue that arose was how the courts would approach any right to procreate which a couple of the same sex might assert. Some Yes campaigners went so far as to suggest that such a right could be suspended or held in abeyance. It is unlikely that they will be as vocal in that opinion now that the proposal has been passed.

For its part, the Government assuaged concerned voters by insisting surrogacy and scientific innovations in reproductive medicine would be dealt with robustly in the context of all couples, regardless of sexual orientation.

The number of surrogate pregnancies was said to be 10-12 per year and be related to instances of hardship. A restrictive regime was promised. The political establishment will have to honour cheques, even if drawn in the heat of the campaign. Anything other than the strictest legislative regime will be seen as a betrayal of promises made.

Another issue will arise as soon as the President signs the amendment into law. From that point on, marriage ceremonies between men and women will be taking place in accordance with a Civil Registration Act which is at odds with the new, gender-neutral institution in the Constitution.

Legal effectiveness

Questions regarding the legal effectiveness of such ceremonies may not be of concern to couples for years, but dealing retrospectively with the situation is not realistic. Steps need to be taken urgently by the Government to bring this period of uncertainty to a close.

Government spokesmen have asserted that couples of the same sex will not avail of the new constitutional provisions for several months. There is little factual and even less legal basis for such confidence.

As soon as the constitutional amendment is signed into law, the race to become the first couple to avail of the new civil institution will be on and the High Court will not necessarily wait for supporting legislation. Any Act that stands in the way of the court will have to be re-interpreted or risk being found unconstitutional.

The Government could have avoided many difficulties by drafting legislation to be enacted simultaneously with any amendment. It did not do so, contenting itself instead with preparing draft heads of legislation which will have to be worked into draft legislation and then enacted.

The current draft of the Marriage Bill contains some provisions which are difficult to justify on legal grounds but which may speak to political concerns. Nevertheless, if they are enacted, the courts will have to interpret them. For example, the Government plans to retain declarations based on the concept of “husband and wife” and to introduce the word “spouse” to provide for same-sex couples.

How is this to be reconciled with what will now be a unified, gender-neutral institution? How will the chief registrar deal with ceremonies, particularly ceremonies carried out by the major religious denominations, that are inconsistent with either of the declarations?

Finally, it was only a short time ago that it would have been considered unnecessary to assert the benefits to a child, other things being equal, of input from a mother and a father. To do so would not have been considered insulting to single parents or to those with a same-sex attraction.

In the past, it would fall to an opposition to point out legal difficulties. On this occasion, those groups which have done so have been accused of homophobia, ignorance and worse.

Suppression

The suppression of dissenting voices – by tearing down No posters, extravagant funding or employers making it clear which way they wished employees to vote – is never healthy. Nearly 40 per cent of voters were not convinced by the approach taken to this issue.The Government would do well to consider, if it really wants a pluralist and inclusive society, whether the right of such individuals to posit a different vision for Ireland is not equally deserving of protection in any legislation.

Benedict Ó Floinn, a practising barrister, was a member of the Working Group on the Reform of the Courts Acts and is the author of

Practice and Procedure in the Superior Courts