Ivana Bacik: No rational basis to deny gay couples right to marry

The key issue in the forthcoming referendum is equality – equal rights to marry for gay and straight couples. Significant progress has been made in Ireland towards equality for gay people, after a very late start. Homosexuality was decriminalised 22 years ago. Since then, laws have been passed prohibiting discrimination on grounds of sexuality, recognising civil partnerships and making provision for the rights of children within gay families through the Children and Family Relationships Bill.

However, equality in marriage remains a critical civil liberties issue for this generation, not just in Ireland but internationally. Around the world, the movement for marriage equality has been gaining momentum in recent years. Since same-sex marriage was first legalised in the Netherlands in 2001, it has been recognised in 18 countries worldwide – including most of western Europe – and the majority of US states. In a few months’ time, the US supreme court will rule on the issue, following more than 60 judgments across American courts which have already recognised the right to marry for gay couples.

Things have moved on since October 2006, when I appeared as one of the legal team for Katherine Zappone and Ann Louise Gilligan in their courageous case seeking recognitionof their Canadian marriage. Civil partnership had not yet been legalised here, while in the US, only a small number of states recognised gay marriage. The case failed because the High Court ruled in December 2006 that the traditional definition of marriage was confined to opposite-sex couples.

Even then, this decision lacked logic. Given legal developments since then, it appears even more illogical. An argument that marriage must be confined to heterosexual couples because it “was ever so” amounts to circular reasoning. The truth is that the definition or meaning of marriage is not fixed in any society; it has changed and evolved over time.

Legal tradition

No doubt Éamon de Valera and the drafters of the Irish Constitution in 1937 only thought of opposite-sex couples when speaking of “marriage”. But at that time, many other legal doctrines were seen as essential to civil marriage, which have since been abolished. In the US, for example, inter-racial marriage was banned until the 1967 Supreme Court decision in the landmark case of

Loving v Virginia

. In Ireland, legal tradition dictated that a woman upon marriage became the property of her husband; until 1990, a married man was regarded as legally incapable of raping his wife. Until the passage of the divorce referendum in 1995, it was not possible legally to end a civil marriage.

Our traditional conceptions of marriage have changed substantially over the years, and tradition alone cannot form a rational basis for a law. It is not justifiable to deny gay couples the right to marry, just because few societies recognised same-sex marriage until relatively recently, so that marriage was generally thought of as something only engaged in by opposite-sex couples. After all, until relatively recently, homosexuality was considered by many to be a psychiatric disorder from which people could be “cured”. Happily, this view is now confined to history.

There is no rational basis for the denial of the right to marry for gay couples. The State does not generally interfere in people’s choices as to whom they marry. There is no prohibition, for example, on a black woman marrying a white man – because we recognise that differences between people based on ethnicity have nothing to do with their ability to make the long-term commitments to each other that lie at the core of marriage. The fact that two individuals who wish to marry each other happen to be members of the same sex, similarly, should not be relevant to the value we place on their long-term mutually committed relationship.

Parenting ability

In reality, the ability of an opposite-sex couple to procreate is the only ground of distinction between gay and straight couples that has been made in the referendum debate. But the ability to procreate is not a key ingredient of marriage. Nobody argues that an opposite-sex marriage is invalid because the two partners are physically incapable of having children. Nor does the State require that a heterosexual couple prove their parenting ability before they marry – convicted child abusers are not banned from marrying.

It would be profoundly illogical and unjust and would fly in the face the empirical evidence and the lived reality of many families in Ireland today to argue that same-sex couples should be denied the right to marry because of a prejudiced view that they are not suited to rearing children.

We all share a common understanding that an adult person has the right to marry another adult person they love. There is no logical basis for limiting the right to marry the person of one’s choice to the right to marry only a person of one’s choice of the opposite sex. The only way to justify limiting the right to marry is where the choice of partner might involve potential harm – the State for instance prohibits siblings from marrying each other. But nobody has argued that any harm is caused to anyone because an adult is allowed to marry the person they love, who happens to be of the same sex.

The institution of marriage has persisted through changed times because as human beings, gay and straight, we all seek the same things that marriage represents: love, companionship, intimacy, mutual trust and responsibility. That is why it is time to take the final step in the journey towards equality with our gay sisters and brothers, towards recognition of our shared humanity. Let’s take that step together by voting Yes to the marriage equality referendum.

Ivana Bacik is Senator for Dublin University and Reid professor of criminal law at Trinity College Dublin