Delicate task of defining partnership

Extending rights to unmarried couples is possible without constitutional change, but only if they are not privileged over the…

Extending rights to unmarried couples is possible without constitutional change, but only if they are not privileged over the married, writes Oran Doyle

The Committee on the Family of the Irish Episcopal Conference has made its submission to the All-Party Oireachtas Committee on the Constitution. It is a thoughtful and thought-provoking contribution to the evolving debate on the recognition of partnerships that do not conform to traditional ideas of marriage and family.

Although the document is broad in scope, addressing issues such as the rights of natural fathers and of the child, it is in the context of recognition for non-marital families that its underlying moral suppositions are brought into sharpest focus.

I do not propose to take issue here with those suppositions; rather, my hope is to identify the legal and moral stakes in the course of action recommended by the bishops.

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The bishops' central submission is that the constitutional definition of the family should remain unchanged. They argue that the Constitution, as currently phrased, correctly recognises the fundamental nature of the family.

Any amendment to that constitutional definition would accordingly reconstitute the family (although presumably only as far as the legal system is concerned) as a social construct.

As the traditional family is the basis of stability in society, they submit, the State could not realise the common good if it were to destroy the source of that stability in this way.

Consistent with their central submission, the bishops argue that constitutional protection should not be afforded to types of partnership and family other than the traditional marriage and family currently protected.

They seem to suggest, however, that people in such caring relationships of mutual dependency should be provided with some legal protections after a period of cohabitation, for example, in terms of tax and inheritance entitlements.

In this regard, the bishops go further than the Law Reform Commission by suggesting that such protections should also be afforded to persons in caring but non-sexual relationships.

The bishops tentatively reject formal State recognition for heterosexual partnerships, as such recognition might provide "an incentive not to marry", but trenchantly reject such recognition for homosexual partnerships as this "would obscure certain basic moral values and cause a devaluation of the institution of marriage".

The bishops are correct in their assertion that the current constitutional position on the marriage and family does not preclude legislative protection for those in other types of relationship.

However, the current constitutional position has been taken by the courts as a legitimation of legislative measures that discriminate against persons in non-marital families.

Given the courts' view that the Constitution's equality guarantee cannot be used as a ground on which benefits provided to one person should be made available to similarly situated persons, the only sure way to preclude legislative discrimination against non-traditional families is to give those families explicit constitutional protection.

This is a far from hypothetical point, as the Oireachtas continues to discriminate openly against those in homosexual partnerships, even in recent legislation such as the Residential Tenancies Act, 2004. One would have thought that the bishops who supported the 1983 anti-abortion amendment to the Constitution would have been more alert to this type of problem.

Nevertheless, it is worth considering the possibilities for legislative protection of non-marital families that would be constitutionally permissible if, as the bishops recommend, the Constitution is left unchanged.

It seems that the Oireachtas can give whatever benefits it wishes to non-traditional families, so long as such families are not made more attractive than marriage.

The Oireachtas could not, therefore, legislate a tax regime that is more favourable to gay partnerships than to heterosexual marriage, for example.

On the other hand, it seems unlikely that the courts would take as doctrinaire a view of marriage/family protection as do the bishops in their submission. In particular, the courts are unlikely to hold that formal State recognition for heterosexual or homosexual unions unconstitutionally undermines the institution of the marital family. Judgment on that issue is likely to be deemed within the legislative competence of the Oireachtas.

This is subject to one caveat: the courts might interpret the Constitution to confine the word "marriage" to heterosexual relationships.

If so, any civil recognition of homosexual partnerships could not, without a constitutional amendment, characterise such relationships as marriages.

Such an approach would, however, also be problematic for many provisions in the social welfare code that define "spouse" so as to include an unmarried heterosexual partner.

If it is a constitutional requirement that persons be of the opposite sex in order to be "married" to each other, it seems equally important that those persons actually be married.

The bishops' submission effectively envisages three levels of partnership recognition. First, pride of place is reserved, in the Constitution, for marriage.

Second, State recognition of non-sexual and heterosexual relationships would be possible on a legislative basis. However, such recognition of heterosexual relationships would run the risk of providing a disincentive to marry for heterosexuals ambivalent as to the moral superiority of marriage.

Third, State recognition should not be provided for homosexual partnerships as that would obscure basic moral values. Nevertheless, general legal protections for cohabitees could, the bishops submit, be provided on a legislative basis.

Seen in this light, the bishops' submission clarifies the moral issues in the current debate over partnership recognition. Heterosexual marriages are seen as morally superior to other heterosexual partnerships, which in turn are seen as morally superior to homosexual partnerships. This descending moral evaluation is neatly reflected by descending legal recognition and protection.

One can, however, view this from the opposite angle: those who share the bishops' views on the appropriate legal protections for non-marital heterosexual and homosexual partnerships implicitly share the bishops' views on the moral inferiority of such partnerships.

However it is argued, therefore, this debate raises profound moral issues.

• Oran Doyle is a lecturer in law at Trinity College Dublin. The Law School in Trinity is holding a conference on Saturday on "Legal Recognition of Committed Relationships". Details from Catherine Finnegan at 6082367