State may still favour opposite-sex parents if vote passes - judge

Referendum Commission chairman says laws treating couples differently will be ‘scrutinised’

Campaigners on both sides of the Same-sex Marriage Referendum (above). Referendum Commission chairman Mr Justice Kevin Cross has said any law that treated one type of married couple differently would be carefully scrutinised by the courts and would likely only be permitted in exceptional circumstances. Photographs: Brenda Fitzsimons/The Irish Times

Campaigners on both sides of the Same-sex Marriage Referendum (above). Referendum Commission chairman Mr Justice Kevin Cross has said any law that treated one type of married couple differently would be carefully scrutinised by the courts and would likely only be permitted in exceptional circumstances. Photographs: Brenda Fitzsimons/The Irish Times

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Extending marriage rights to same-sex couples would not make it impossible for the State to favour opposite-sex couples in laws on surrogacy or assisted human reproduction, the Referendum Commission chairman has indicated.

However, Mr Justice Kevin Cross said any law that treated one type of married couple differently would be carefully scrutinised by the courts and would likely only be permitted in exceptional circumstances.

The No side has claimed that if the referendum passes it will be constitutionally impossible for the law to show any preference for opposite-sex couples in surrogacy and assisted reproduction. Mr Justice Cross said it was unlikely but not impossible.

“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,” he said.

Implications

In a wide-ranging interview with The Irish Times, the High Court judge made some of his most direct comments to date on the referendum and its implications. He said a Yes vote would not redefine marriage or change its status in any way, but it would redefine the view as to who could marry.

Although he insisted he would not enter into debate with either side, his responses contradict a number of assertions made by the No side. While the Supreme Court had recognised “a right to procreate naturally if possible”, there was no right to access artificial methods.

A Yes vote would not confer on same-sex couples any right to adopt or access surrogacy services, the judge said. Same-sex couples were already eligible to apply to adopt as a result of a recently enacted law, and this would not change irrespective of the outcome of the referendum.

Right to mother and father

Asked whether a Yes vote would change the Constitution to mean that children did not have a right to a mother and father – a claim made by some No campaigners – Mr Justice Cross said there was no such right. “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,” he said.

In the event of a Yes vote, Mr Justice Cross said, priests or civil solemnisers would be free to choose not to perform same-sex marriages and schools could still conduct religious classes in accordance with their own ethos.

The effect of a Yes vote would be that two people of the same sex would be entitled to marry just as two people of opposite sex can marry now, and they would have the same constitutional status.

If the referendum is defeated, the present situation will continue without change.

Asked if the referendum had anything to do with adoption or surrogacy, Mr Justice Cross said: “This referendum is about marriage – who may marry, who may not marry.”

He said surrogacy was not regulated by the Constitution or law at present. The Government intends to regulate it by law, and those regulations would apply irrespective of the referendum result.

On adoption, he said married people, single people and same-sex couples were already eligible to apply and the outcome of the referendum would not change that.

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