Alan Shatter: Law should prevent discrimination against those in gay marriage

‘Marriage may be contracted in accordance with law by two persons without distinction as to sex.” So reads the new Article 41.4 incorporated into our Constitution as a consequence of the historic majority Yes vote in the marriage equality Referendum of May 22nd. Whether heterosexual or gay, two adults are now entitled to get married, where no legal impediment to the marriage exists.

During debates before the referendum vote, little notice was given to the General Scheme of the Marriage Bill 2015, published in March, detailing measures to be enacted should the 34th amendment to the Constitution be adopted. Enactment of the Bill is now promised by mid-July and, when enacted, the current civil partnership ceremony will be replaced by a marriage ceremony.

For those who are civil partnered, all of the rights and obligations currently applicable to them under the Civil Partnership Act 2010 will continue and they may remain civil partners. Couples in a civil partnership, who wish to do so, will be able to seamlessly become a married couple by marrying each other and, upon marriage, their civil partnership will automatically be dissolved.

Advance notice

Three months advance notice of a marriage or civil partnership ceremony must be given to the civil registrar. The draft marriage Bill signals that existing civil partners intending to marry each other will also have to give three months prior notice but, as they will have already entered into a legally recognised committed relationship, I believe this should be reconsidered. Any couple getting either married or civil partnered can currently apply informally to the courts to waive the three-month notification requirement, where it is in the couples interest, and it is justified “by serious reasons”, for example serious or terminal illness. There must be some possibility that a same-sex couple may, prior to the new legislation coming into force, rely on the new constitutional article to seek a court order requiring a civil registrar to swiftly solemnise a marriage.

A fee of €200 is payable when notifying the civil registrar of a marriage or civil partnership. As a fee has been already paid by couples who entered into a civil partnership the Government should waive this fee for any existing civil partnered couple who marry.

Following the successful referendum, there is no barrier, in my view, to a same-sex couple who wish to marry, so notifying the registrar prior to the marriage Bill’s publication or enactment. Helpfully, the draft Bill envisages that a notification by a couple of their intention to become civil partners will, if they agree, following enactment of the Bill, be taken as a notification of their intention to marry. Consequently, the enacting of the marriage Act need not cause delay to the intended marriage of a same-sex couple.

Solemniser

The draft Bill prescribes that constitutional change will not require any religious body or religious faith to recognise a same-sex marriage. It also provides that a “solemniser” registered on behalf of a religious body will not be obliged to “solemnise a marriage in accordance with a form of ceremony that is not recognised by that religious body”. Accordingly, neither priests nor rectors, imams nor rabbis will be obliged by law to celebrate a same-sex marriage. While the majority of ceremonies are likely to be celebrated by a civil registrar, others who are registered in the register of solemnisers may also celebrate any such marriage.

The new Bill will contain amendments to various Acts of the Oireachtas recognising same-sex married couples as spouses and will repeal some provisions in the Civil Partnership Act 2010, including those that facilitate individuals in the future entering into civil partnership.

The 2010 Act enabled the minister for justice to declare that certain legal relationships entered into by same-sex couples outside Ireland are entitled to be recognised as a civil partnership in Ireland.

As minister, I made many orders extending civil partnership status in this State to same-sex marriages and civil partnerships celebrated elsewhere. The draft Bill, as presented, prescribes that no such declarations can be made in the future. The declaratory system benefited both Irish same-sex couples who married abroad and also foreign same-sex couples who live here. It can be anticipated that once provision is made for same-sex marriages in this State, our courts will recognise same-sex marriages celebrated abroad. However, to avoid uncertainty, the legislation enacted should state that such marriage ceremonies, properly celebrated abroad prior to the referendum, will be recognised as marriages in this State.

The draft Bill as framed ends the declaratory process. I believe this is a mistake. A number of countries such as Australia and Germany are likely for some time to continue arrangements similar to our civil partnership. Those who become civil partnered in the future outside the State should be entitled to the same status as those who remain civil partners here under the 2010 Act.

Religious grounds

Section 37 of our employment equality Acts allows employers to favour employees or prospective employees “on the religion ground” [sic] in religious, medical or educational institutions if it is reasonable in order to maintain the religious ethos of the institution. The institution concerned must be under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment that promotes certain religious values.

Ethos

The section also enables an employer to take action “which is reasonably necessary” to “prevent the undermining” of the religious ethos of the institution by an employee or a prospective employee. The Acts do not define “religious, educational or medical institutions” or “religious ethos” or what is meant by “undermining”.

Many people who are LGBT, in civil partnerships, divorced, cohabiting couples or unmarried parents either seeking employment or already employed with these institutions perceive section 37 as a considerable threat to their job security, progression in employment or ability to obtain employment.

When minister, I asked the new Irish Human Rights and Equality Commission, as a priority, to report on an appropriate reform of section 37 as I believed it required recalibration to ensure that it did not unfairly facilitate discrimination against individuals as a consequence of their personal circumstances or sexual orientation but that it was important to ensure also our continuing respect for religious freedom.

The commission reported in April 2014. It recommended changes to the section that would strike a better balance between individual rights and religious freedom and also ensure Ireland’s full compliance with article 4(2) of the European framework directive on employment and occupation.

The Bill to come before the Dáil should enact the reforms proposed by the commission to address the difficulties created by section 37. This will make Ireland a better place for many individuals and ensure that same-sex couples employed or who seek employment in such institutions and who wish to marry are not prevented from doing so for fear they will be sacked or denied promotion or employment for which they are qualified. Moreover, there should be provision prohibiting such employers from discriminating against any individual simply because of being a party to a gay marriage.

Alan Shatter is a Fine Gael TD and was Minister for Justice 2011-2014