Constitution is not an obstacle to legalising gay marriage

OPINION : The Government can legislate for same-sex marriage without holding a referendum

OPINION: The Government can legislate for same-sex marriage without holding a referendum

EVERYONE IS familiar with the way rumours can spread to the point where complete fiction is related as gospel truth. A similar but lesser-known phenomenon is a “cascade”: one person, usually high-profile and influential, states as fact something contestable or even incorrect. This statement is accepted and repeated by others who have not checked whether it was well-founded. In time the initial statement comes to be regarded as uncontroversial and even self-evident.

I would argue that this has happened with respect to the issue of whether legalisation of same-sex marriage requires a constitutional amendment (and so a referendum). After Katherine Zappone and Ann Louise Gilligan lost their High Court case seeking recognition of their Canadian marriage in 2007, the late Brian Lenihan, minister for justice at the time, stated it was his “strong belief, based on sound legal advice, that gay marriage would require constitutional change”. This view has since been repeated ad nauseam by politicians queuing up to make the point in the past week.

We have now reached a stage where a majority of politicians in the Oireachtas favour same-sex marriage. The Taoiseach may have refused to be drawn on the matter, but Labour, Fianna Fáil, Sinn Féin and the United Left Alliance have all committed themselves to marriage equality. Fine Gael has yet to take a position as a party but in the past week TDs such as Alan Shatter, Leo Varadkar, Damian Enright and Jerry Buttimer have spoken publicly in favour.

The stumbling block identified by all parties is the Constitution, which in Article 41.3 pledges the State to “guard with special care the institution of marriage, on which the family is founded, and to protect it against attack”. (The Constitution also pledges, in Article 40.1, “All citizens shall, as human persons, be held equal before the law.”) Nothing in this sparse text defines marriage as one man and one woman, and the equality guarantee suggests limiting access to marriage on grounds of sexual orientation is discriminatory.

Same-sex marriage was clearly not contemplated when the Constitution was drafted in 1937. However, it has always been accepted by Irish courts that the Constitution, with its vague language, is to be interpreted in light of conditions in society today, and not by reference to opinions and standards in 1937. An analogy can be found in the reference to “free primary education” in Article 42.4. No one in 1937 thought this included the right of severely disabled children to services such as speech therapy; but because of changed standards and opinions in society the courts ruled in 1993 that the right to education should be extended to include such children and such services.

The only court decision directly considering same-sex marriage was the Zappone judgment in 2007. The cascade effect to which I referred is the near-universal acceptance (by people who have never read the judgment) that that court found a constitutional amendment would be required to legalise same-sex marriage. In fact, while the High Court declined to recognise the applicant’s Canadian marriage, the judgment was unclear as to whether the term “marriage” in the Constitution is inherently opposite-sex. One passage suggested it may be but another suggested the key factor was consensus in society today, as represented in the most recent legislation on the point.

Katherine Zappone and Ann Louise Gilligan have opened fresh legal proceedings. They will argue (on slightly revised grounds) that, far from precluding same-sex marriage, the Constitution precludes a ban on it: the polar opposite of conventional wisdom.

There are strong legal arguments to support this view. However, courts are generally reluctant to interfere in matters that are the subject of intense political controversy, and the fact that this issue has been referred to the constitutional convention means a court decision in favour of same-sex marriage could be seen as subverting democracy.

Things need not be so black-and-white: there is a middle road available. The compromise view would be to say that while the vague provisions of Articles 40 and 41 of the Constitution do not guarantee same-sex marriage, they equally do not preclude it – the choice is a matter for the Oireachtas, which is free to reflect changing consensus in society by legislating for same-sex marriage without a referendum.

In light of the prevailing mantra about the limitations imposed by the Constitution, no government is likely to test this view by enacting such legislation in the absence of a court decision first clarifying the exact position.

The interpretation of the Constitution put forward here has the potential to strengthen rather than subvert democracy, by challenging politicians who are on the record as being in favour of marriage equality to follow through on their public statements and enact legislation to similar effect. It is all too convenient at present for political leaders to hide behind the Constitution and to refer matters to the convention, so that they can simultaneously appear reformist without taking responsibility for actual reform. Perhaps our courts can prod them into leading rather than meekly following.

Dr Conor O’Mahony lectures in constitutional law at UCC.