Sir, – Andrew Abbott (Letters, February 1st) points out that I had argued in my letter the previous day that “a casual ‘throuple’ would undoubtedly – and obviously – not” count as a family under the proposed new wording of Article 41.1. And he wonders whether “committed, stable, and long-term throuples” would count as such.
The answer, I suggest, lies in three of the arguments I set out in my letter.
First, I pointed out that it will be for the Government and the Oireachtas to determine, in the first instance, which kinds of units will qualify in this or that context. Take the case of the contributory widower’s pension. This would be governed by legislation, of course. And the content of that legislation would be governed by the policy preferences of political majorities in the Oireachtas, which in turn would be governed by policy preferences in society at large.
Now Mr Abbott can speculate for himself as to whether it is likely – given the political culture, and majority preferences – that such legislation would make this pension available to the two surviving partners in a long-standing “throuple” on the death of the third. For my part I see it as doubtful.
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There is always the possibility that the two bereaved partners would challenge their exclusion in the courts, relying on the new wording of Article 41.1. But at that point the second of my arguments would kick in.
This was that the judges would defer to the Government and the Oireachtas on this matter of social policy, as per the “separation of powers” framework established by the Constitution. They would not invalidate the legislation simply because they might feel that the bereaved partners should have been included. Judges in this jurisdiction recognise – and constantly underline – that they are not elected legislators, and that policy questions of that kind are accordingly not ones for them to answer.
Rather, they would have to be satisfied that the exclusion was entirely indefensible in the sense that it just could not be justified when considered in the light of some constitutional right or provision. (As would be the case, for example, if the new wording read “. . . whether founded on marriage or on other durable relationships, such as throuples . . .”).
And then the third of my arguments would kick in. This is that the judges, in determining that question of legal interpretation, would set great store by the fact that the phrase “durable relationships” sits right next to the phrase “marriage” in the new Article 41.1.
As I pointed out in my letter (January 31st), the new legal concept would likely be interpreted with reference to the existing legal concept of marriage. And that concept, as it happens, is the subject of its very own constitutional provision – one that was inserted following a referendum that took place as recently as 2015. The wording of that provision is particularly striking in the light of this fascination with throuples. Article 41.4 reads: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.” – Yours, etc,
Dr TOM HICKEY,
School of Law and Government,
Dublin City University,
Dublin 9.
A chara, – I notice some controversy in your letters page about the meaning of the phrase “durable relationships” in respect of the forthcoming referendum. Any dispute about the meaning of any part of Bunreacht na hÉireann has to be considered in respect of the Irish language version of the text. The Irish phrase in the text “cóngais bhuanfasacha” conjures up a context of a long-term relationship, and perhaps that’s what the Government had in mind.
Mind you, in its first comment on the text the Electoral Commission, as Tuairisc.ie pointed out, used an incorrect version of the Irish text, namely “caidreamh marthanach” a more commonly expressed version of “lasting relationship”.
Given all this confusion, can we conclude that the Government has indeed made a “cocstí” of the whole thing or, as the Electoral Commission might say, “a dog’s dinner” of it? – Is mise,
EOIN Ó MURCHÚ,
Cluain Dolcáin,
Baile Átha Cliath 22.
