Madam, – Last week Ireland’s Catholic bishops rehashed the orthodox and outdated definition of marriage, declaring that marriage “means the union of a man and woman . . .” (Front page, March 11th). This re-echoes the definition of a family in 1866, articulated by Lord Penzance in Hyde v Hyde. He stated that marriage may be defined as the voluntary union for life of one man and one woman, to the exclusion of all others. Traditionally this definition has been accepted in Ireland.
This is evident in the dictum of Murray J in DT v CT where marriage is defined as “a solemn contract of partnership entered into between a man and a woman with a special status recognised by the Constitution.”
Why in this day and age is a dictum from a decision from 1866, which is positively misleading as a definition of marriage, still thought to be a valid today? It simply does not correspond with social reality.
The bishops are concerned about undermining the Constitution. However, they should be made aware that “no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts”. (Per Walsh J in McGee v Attorney General).
Therefore, the definition relied on by the bishops is frozen in time and not contemplated in light of the modern family and development elsewhere, especially considering developments in light of the European Convention on Human Rights, which makes room for the interpretation of the right to marry under Article 12 to include same-sex couples. It’s time to invoke progressive constitutional interpretation. – Yours, etc,