Extraordinary patience has finally paid off and constitutional change will one day follow, writes NOEL WHELAN
THE OVERWHELMING parliamentary support witnessed again this week for the legalisation of same sex civil partnerships arises from the basic decency and generosity of the Irish people.
Politicians across the spectrum felt able to support the legislation because its provisions accord with what is acceptable to the general public. Attitudes towards the gay and lesbian community have been positively transformed in recent years, in part because so many more people now know openly gay friends or family members who feel real discrimination.
In asking for this dramatic civil law reform – and not insisting on even more dramatic constitutional change – the political parties and the mainstream gay and lesbian groups have pitched it right. Many politicians and gay rights advocates wish to go further but reluctantly accept that providing for gay marriage itself is currently beyond the capacity of the political system to deliver.
I am among those who have argued for many years for a more clearly defined distinction between civil and church marriage and for the former to be available to all couples irrespective of gender or sexual orientation. I know enough about where the Irish electorate is at currently however to know that civil partnership is as far as most Irish people are prepared to go.
The Irish experience of dealing with social issues requiring Constitutional change is an unhappy one. In the area of pro-life/abortion law, a flawed amendment was inserted into the constitution and since then the electorate has rejected two constitutional proposals on the substantive right to life.
The defeat of the first divorce referendum and the extraordinarily narrow margin by which the second was passed also illustrate the risks associated with seeking constitutional reform which is ahead of the public mood. Some day a gay marriage amendment will pass by referendum but we are not there yet and won’t be there in my view for at least a decade.
It is worth remembering that of the radical legislative changes on sensitive social issues implemented in this country over the last two decades, very few have arisen from home-grown or parliamentary initiatives. Most significant social legislative changes resulted from legal challenges in the courts or requirements arising from our membership of the European community or both. In that context this week’s historic legislation is remarkable.
Gay and lesbian campaigners are to be complimented for their tenacity and patience. Far from being an aggressive lobby as some suggest, groups such as the Gay and Lesbian Equality Network have calmly persuaded and provoked media and politicians to become interested in the need for this legislative change and ultimately to enact it.
Far from jumping the queue, as Senator Ronan Mullen suggested to Pat Kenny on radio, these campaigners have been extraordinarily patient in waiting for our politicians to address their concerns.
The struggle to decriminalise homosexuality in this country was a slow and tortuous one. It took a 17-year legal battle by David Norris to get the issue sufficiently high up the agenda. When the European Court declared the Irish law criminalising homosexuality contrary to the European Convention on Human Rights in 1988, the main political parties responded with promises to change the law. However, nothing happened for another five years. It took the skill of one particularly progressive politician, then justice minister Máire Geoghegan-Quinn to amend the statute book in 1993.
Now 17 years later, after another long wait, gay and lesbian couples have finally been granted the right to enter into legally protected partnerships.
They waited a long time for the political system to even consider exploring the issue. They waited again while reports from the Oireachtas All Party Committee on the Constitution and the Law Reform Commission Report on the Rights and Duties of Cohabitants were welcomed but not acted upon. When the Colley Working Group on Domestic Partnerships published more detailed proposals in November 2006 they waited while the political parties internalised the necessary policy shifts. They watched and waited when Labour’s Brendan Howlin twice introduced the party’s Private Members Bill and the government twice voted it down.
They quietly witnessed the definitive political breakthrough when the election manifestos of all the main parties in 2007 included a promise to enact legislation to provide for civil union. They dared to hope it might finally happen when the promises in the Fianna Fáil and Green Party manifestos were carried forward into the programme for government. Now, well past the half-time mark in the scheduled life of the current Dáil, the Civil Partnership Bill has at long last been enacted.
Allowing time for the commencement provisions, arrangements with local registrars and the statutory notice period, we are likely to see the first civil partnership ceremonies around Christmas. Inevitably the pictures of the first such events will make the front pages. Then the novelty will wear off and they will be relegated to the wedding supplements. Civil partnership ceremonies will become commonplace and part of the fabric of our law and society.
Committed gay relationships will be codified; traditional heterosexual marriages will survive unscathed. All of which will, in time, create an environment where an effort at constitutional change can be attempted successfully.