Sir, – Bruce Arnold’s recent opinion piece on the wording of the marriage amendment was greeted with bemusement in the legal community (“Referendum wording is threat to Constitution”, Opinion & Analysis, February 20th).
Concerned that voters would be misled into believing that the amendment would inadvertently abolish opposite-sex marriage, a group of 56 solicitors, barristers and legal academics co-signed a letter to the editor refuting this claim (February 24th).
Mr Arnold replied (February 25th), claiming it misrepresented his argument and calling for a more detailed response to his point about the Irish text. In the interests of providing clarity for voters, this letter aims to provide such a response.
Mr Arnold’s letter claimed that the main point of his original article was “not that the amendment would ‘prohibit’ opposite-sex marriage, but that the Irish text only provides a right to marry for same-sex couples”.
This is a fine distinction.
If all that had been said in Mr Arnold’s original article was that the Irish text could have been better drafted (which is a reasonable point), few eyebrows would have been raised. However, the fact is that his article went much further.
It claimed the effect of the amendment would be to “replace, not add to, the previous understanding of the term marriage”, and that the amendment would achieve “the elimination of normal marriage and the creation of two same-sex marriage types, the gay and the lesbian”. Readers can draw their own conclusions.
Mr Arnold also claimed that the lawyers’ letter ran “completely contrary” to Article 25.5.4 – “In case of conflict between the texts of any copy of this Constitution enrolled under this section, the text in the national language shall prevail”. He also stated that his reading of the Irish text was “the only reasonable translation”. However, reading the Irish text is more than an exercise in translation; it is an exercise in constitutional interpretation. Mr Arnold engaged in the former, but ignored the established rules governing the latter.
The Constitution is written in both the Irish and English languages. In practice, amendments are drafted first in English and then translated into Irish. It is important to note that no two languages can ever be translated word for word. Thus, in legal translation, the focus is ensuring that the text in both languages ultimately has the same legal meaning. Those charged with translating constitutional amendments into Irish also face the difficult task of using language that is consistent with the older provisions.
The English text provides: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”
In Irish, it provides: “Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.”
The choice of the phrase “cibé acu is fir nó mná iad” is guided by the desire to be consistent with Article 16.1, in which “Every citizen without distinction of sex” is translated as “Gach saoránach, cibé acu fear nó bean”. “Beirt” is used to denote two persons (as in Article 28.7.2).
The common Irish word for distinction (“idirdhealú”) is avoided because it is used in Article 44.2.3 as a translation for “discrimination”.
The confusion in the marriage amendment is created by the use of plural rather than singular. A widely agreed translation of the Irish text back into English is: “Two persons, whether they be men or women, may contract in relation to marriage in accordance with law”.
The text in both languages must be interpreted by reference to established rules of constitutional interpretation. Mr Arnold focused entirely on a literal interpretation to argue that the amendment would “eliminate” normal marriage by implying that both parties must be either men or women. (At most, this is implied; it is certainly not clearly stated.)
In People (DPP) v O’Shea (1980), Mr Justice Henchy stated: “It may be said of a constitution, more than of any other legal instrument, that ‘the letter killeth, but the spirit giveth life.’ No single constitutional provision . . . may be isolated and construed with undeviating literalness.”
Similarly, in Tormey v Ireland (1985), the Supreme Court held that literal interpretation even of “unqualified and unambiguous” language must give way to a different approach where it would result in “absurdity”.
Given that the entire purpose of the amendment is to allow same-sex couples to marry on an equal basis to opposite-sex couples, a literal interpretation of a clumsy usage of plural nouns that concludes that opposite-sex marriage would be “eliminated” by the amendment can only be described as an absurdity.
This is why no court would interpret the provision in this way.
The clear purpose of the provision points decisively to the opposite result.
No one is claiming that the Irish text is perfect; but ultimately, any imperfections only matter to the extent that they will change the legal effect of the amendment.
For the reasons outlined, these ones won’t have any effect.
But whether he wants to admit it or not, Mr Arnold did claim that a Yes vote would replace opposite-sex only marriage with same-sex only marriage.
This claim is not grounded in legal reality, and it does voters a disservice by creating confusion and uncertainty. – Yours, etc,
Dr SEÁN Ó CONAILL,
Dr CONOR O’MAHONY,
University College Cork,
A chara, – It seems unconscionable to accept there is flaw in the wording of the proposed amendment and then advocate that it should be passed now and left for the courts to sort out later.
Do those to whom the current wording is so precious not believe that there exists in this country even one Irish-language scholar who can without undue delay produce a clear and unambiguous version to put before the people?
To discover an error after a law is passed is unfortunate, but to realise it in advance and refuse to correct it is absurd. Let’s fix the mistake, dispose of this distraction, and deal with the real issues of this debate. – Is mise,
Rev PATRICK G BURKE,
Sir, – Like Leo Varadkar, I would like to be an “equal citizen in my own country”. At present, civil partnership, an institution that for some offers advantages over marriage, is only available to couples of the same sex.
If the referendum on same-sex marriage is passed, will heterosexual couples also be entitled to opt for civil partnership if they so wish? – Yours, etc,