Noel Whelan: What’s the difference between civil partnership and marriage?

2015: ‘Constitution protects rights of married people, but not rights of people in civil partnerships’

Writer and barrister Noel Whelan, who died on July 10th, 2019,  after a short illness, played an important role as an adviser to the 'Together for Yes' campaign which was central to the introduction of same-sex marriage in 2015.

Here is his most-read column on the subject during that campaign. 

Last week I wrote about two of the posters being used by the No campaign in the marriage referendum. This week I want to talk about their third poster which, although less impactful, is also disingenuous and divisive in its messaging.

This poster states: “We already have civil partnership: don’t redefine marriage.”

There is a lie at the heart of this poster. The collective “we” do not already have civil partnership. Only people of the same sex can be civil partners. Only people of the opposite sex can marry. Lesbian and gay couples are locked out of marriage.

The message on this poster would be more honest if it said “they” have civil partnership but that would reveal the inequality and sense of “other” that hides beneath the No argument.

Since its introduction civil partnership has provided lesbian and gay couples with a degree of legal recognition and urgently needed protections in taxation, inheritance and other areas but it falls short of full constitutional equality.

Civil partnership lacks the clarity, certainty and constitutional protection that goes with marriage. The distinctions between the two operate at practical, legal and symbolic levels.

Civil partnership is a legal agreement whereas marriage is how our community recognises committed, loving relationships.

Rewarding

As a heterosexual man I have the legal right to marry the person I love. Marrying her is the most important and most rewarding thing I have ever done. There is no way I would trade my marriage for a civil partnership; no one would.

If I introduce my wife to someone, they know what that designation means. It describes precisely her relationship to me and our interconnection in society. It tells our community that we enjoy a long relationship to which we both have committed, intending it to be for life. It communicates what associated rights and connections flow from this.

Insurance companies know what it means if I put the word “wife” on a form. If either of us took a job abroad, the permission to immigrate governing one of us would apply by automatic extension to the other.

If I am ever rushed to hospital and my wife arrives after me nobody will hesitate to grant her appropriate access. If I die before her no one will have to consult local council or church bylaws before deciding whether we can share a grave. After I’m gone there will be no doubt about the appropriate term for her status – she will be a widow, not a former civil partner.

The legal family and constitutional protections that flow from being part of a marriage are also important. The Constitution protects the rights of married people, but not the rights of people in civil partnerships. Gay or lesbian couples (with or without children) are not viewed as families in our laws.

My wife and I, like many couples, lived together for a couple of years before we married. We then chose to move our relationship on from being partners to being married. For half of the time since there was just the two of us, for the second half we have been parents. We have, however, been a family from the moment we were married.

Opposed

It is precisely because marriage is different from civil partnership that No campaigners are so strongly opposed to sharing it with lesbian and gay couples. The leading No spokespersons are actually the most eloquent exponents of the difference between civil partnership and marriage. The more they speak of how marriage is special as a foundation of our society and of the importance of the constitutional recognition the more they emphasise the distinction.

The marriage bar is one of the few remaining ways in which gay and lesbian couples are discriminated against in our laws. Ending this discrimination matters to them. It matters to them more than we in the heterosexual community have ever realised.

Like all inequalities it is more acutely felt by those who have had the door slammed in their face than it is appreciated by those comfortable on the inside.

At the Fianna Fáil ardfheis last weekend one delegate told of a proud moment when she was canvassing with her father. He was asked at one doorstep whether he had children and, if so, how he could campaign for a Yes vote. He introduced his daughter, told the householder she was gay and said: “I reared six children but I reared no second-class citizens.” It illustrates the passionate determination of all parents to see each of their children treated equally.

Having a separate and lesser institution sends a clear message that lesbian and gay people are not equally valued. The exclusion of gays and lesbians from marriage marks them out. It tells them that they are less.

It is a searing, unnecessary, tireless discrimination. It’s time “we” joined “them” in voting to end it.

Twitter: @noelwhelan