As the same-sex marriage referendum campaign enters its final week, Referendum Commission chairman and High Court judge Mr Justice Kevin Cross responds to questions from The Irish Times on the proposal and its implications.
Q. If the referendum is passed next week, what will happen?
A. If the referendum is passed next week, two people of the same-sex would be entitled to marry just the same as two people of the opposite sex can marry now. They will have the same constitutional status as married persons of the opposite sex.
Q. And if it’s a No?
A. If it’s a No, the present situation will continue without change.
Q. Will a Yes vote redefine marriage?
A. No, it won’t redefine what marriage is. It will redefine clearly the view as to who can marry. It will allow people of the opposite sex and the same sex to marry. That’s the only difference. The same constitutional protections in relation to the family will apply. A married couple of the same sex will have precisely the same constitutional status as a married couple of the opposite sex.
Q. What do you see as the key differences between civil partnership and marriage?
A. The main difference is that a married couple enjoy constitutional as well as legal protection. A civil partnership couple only enjoy legal protection. Legal protection can be taken away, amended or reduced by an Act of the Oireachtas. Constitutional protection can only be taken away by a vote of the people. That's the essential legal difference between the two. There are other smaller differences, but the essential difference is as I described it.
Q. You mentioned that a family enjoys protection under the constitution. What does that mean?
A. The family, under the constitution, is given special status and certain rights. It is described in great detail in Article 41. The particular and practical application of those rights is something that is more nebulous, and has been defined in various court cases. Essentially what it means is a married couple cannot be treated less well than an unmarried couple. That has applied in the past in certain cases in relation to taxation, in relation to social welfare and the like. A married couple have a legal status that cannot be disimproved vis a vis the unmarried couple.
Q. If the referendum is passed, what happens to civil partnership? Will people still be allowed to avail of it?
A. They could be, but the Government has indicated that they are going to bring in an Act to stop any further civil partnerships being created. Existing civil partners will have the same rights as they have today, and they may marry, of course, if they wish, but no new civil partnerships will be created.
Q. If the referendum is passed, will there be any change in the status of opposite-sex marriages?
Q. Will there be any change in the status of marriage itself?
Q. Would priests be forced to perform same-sex marriages?
A. The role that the priest or the parson or the civil solemniser has in relation to the civil aspect of marriage is to solemnise it, to register it and to do the legal requirements. A priest or a parson or a civil solemniser can refuse to participate and solemnise any marriage that they want. At the moment, a priest can refuse to solemnise a couple one of whom is divorced, for example.
Or even one of whom refuses to attend a pre-marriage course. There is no obligation upon a priest to perform the solemnising function at any marriage. He can choose not to do so if the couple are not, as far as he is concerned, qualified to marry, or for any other good reason.
The Government have indicated that they intend to bring in a statute to copperfasten that position, but I don’t think it probably needs any statutory copperfastening, because it’s the law as it is.
Q. This question arises from a point made by the No side. Would close relatives of the same sex be allowed to marry? In other words, would the criteria be any different for same-sex marriage compared to opposite-sex marriage?
A. No. The proposal is that marriage may be contracted in accordance with law by two persons without distinction as to their sex. The important words there are “in accordance with law”.
There are prohibited degrees of relationships, as they are legally defined, in relation to close relatives. They apply to married persons. They apply at the moment to civil partners as well. Clearly, a same-sex married couple would be in precisely the same position as an opposite-sex married couple.
Q. Will schools be obliged to change the way they teach about marriage?
A. Children at the moment, in religious schools, are taught the religious meaning of marriage – that it is a permanent union between man and woman and the like. This is notwithstanding the fact that there is divorce. Children are also presumably taught in civics class about the legal provisions in relation to divorce and family planning.
I presume in the civics class or the equivalent, children may be taught as to what the legal requirements in relation to marriage are in the civil law, and in religious formation, should that be given in any school, the school will be able to conduct its religious class in accordance with its own ethos.
Q. The Bill containing the referendum proposals is called the Marriage Equality Bill. That phraseology will appear on the ballot paper. You haven’t used it anywhere in your guide. Why is that?
A. We want to be as descriptive as possible in our description of the proposal. The Bill is described as the Marriage Equality Bill, and that’s fine. Other people on the No side have used less flattering terms. That’s fine too. We use a neutral description – the Marriage Referendum – because that is what it is. Sometimes the Referendum Commission uses the precise title of the Bill in its description. Sometimes we think it’s better we don’t use the precise title. There is no judgment in that. It’s just what we do.
Q. Surrogacy has been raised by the No side. If the referendum is passed, will same-sex couples have a right to access surrogacy services?
A. First of all, there is no specific constitutional provision on surrogacy. Surrogacy services are at present unregulated in Ireland. So there is no legal right to access them or no legal prohibition on anyone accessing them. The Government have announced that they have plans to bring in regulations governing surrogacy. We don't know what that will entail, but that is going to apply whatever the result of the referendum.
It's sometimes said, which is the case, that the Supreme Court have talked about the right of a family to procreate. However, the courts have never given, and there is no such right, to access any artificial methods of procreation.
The right to procreate was talked about in a case involving a prisoner who wanted to procreate with his wife. The right was acknowledged, but the physical ability of him to exercise that right was not supported. So it’s a right to procreate naturally if possible.
Q. And if this was passed, would it limit the ability of the Oireachtas to regulate in any way?
A. As we said in our guide, a same-sex married couple and an opposite-sex married couple would have the same constitutional status. If the referendum is passed, the issue might arise as to whether legislation could be passed that would treat them differently.
The answer to that question is not simple. Any such difference of treatment would have to be very carefully scrutinised by the courts, and if the courts were to uphold such difference of treatment, there would have to be a very good reason for it. Such a reason would have to be relevant to the purpose of the legislation, and both opposite-sex and same-sex couples would have to be treated fairly.
Whether these requirements are satisfied in any given circumstances would depend on the evidence presented. It couldn’t be done on a whim. It couldn’t be done on a prejudice. If there were good evidence, for example, that children fared better under one sort of parents than another, well then it is possible that such differentiation could be introduced, subject to the requirements that I mentioned a moment ago.
If you don’t believe that there is any such evidence about different treatment, well then it won’t happen and it can’t happen.
So the short answer would be: unlikely but not impossible.
Q. To clarify: in regulating surrogacy, it would be open to the legislature to privilege an opposite-sex couple over a same-sex couple?
A. I didn’t say that. If any such differentiation were introduced and the courts were to scrutinise any such differentiation, in order to be upheld there would have to be very good, fact-based reason, relevant to the purpose of the legislation, and everybody would have to be treated fairly and proportionately. It would be a very hard scrutiny. Not impossible, but difficult to imagine.
Q. Would a Yes vote give same-sex couples a right to adopt children?
A. First of all, nobody has a right to adopt a child. People have a right to apply to adopt children, which is a different thing. Nobody will have a right to adopt a child [if the referendum passes]. The law has long said that the following people had a right to apply, namely a married couple and individuals as individuals, irrespective of their sexual orientation. That has been the case for a number of years.
Recently, the government has introduced an Act whereby same-sex couples can also, as a couple, apply for adoption. Clearly, if a same-sex couple is also a married couple, they would have the same right to apply for adoption, but they would have that right anyway before they got married.
So there’s no right to adopt, and any adoption must be in the best interest of the child. That has been a legal requirement for a long time, but it is also a constitutional requirement since the Children’s Referendum.
Q. Does this referendum have anything to do with adoption or surrogacy?
A. This referendum is about marriage – who may marry, who may not marry. If it passed, it would have the effect that I have described. Surrogacy is not regulated by the Constitution at all. There is no proposal that it shall be regulated by the Constitution. Surrogacy at the moment is not regulated by law. It is intended to regulate it by law. That regulation will apply irrespective of whether the referendum is passed or not.
Adoption is regulated by law. At the moment, adoption is available to married persons, to single people and now, as of recently, to same-sex couples. There will be no change in that if the referendum is passed.
Q. According to the No side advocacy group ‘Mothers and Fathers Matter’, a Yes vote will change our Constitution “to mean that children do not have a right to a mother and a father”. Is there such a right?
A. No. I don’t want to get into debate with one side or the other. That’s not the function of the Referendum Commission. People, I’m sure, have good reasons to vote Yes and good reasons to vote No. But there is no right to a mother and a father. Many children don’t have a mother and a father, and there is no way that they can enforce any such supposed right.
It doesn’t exist in law.