In pushing for a Yes vote in the referendum, many politicians and commentators have lost sight of, or obscured, legal principles on which both sides should be agreed – principles at the heart of the decision the people have to make.
The starting point is commonplace enough. Since the Constitution was adopted, and for centuries before, a defining characteristic of marriage in the courts and society has been that it is between a man and a woman. The amendment would change this, by allowing marriage to be contracted by two persons “without distinction as to their sex”. Marriage would be gender-neutral – a point graphically illustrated by the draft Marriage Bill. The Bill, by which the Government will give effect to any amendment, provides that a change in the gender of a spouse will have no effect on a marriage; ie having married a man, a wife will not be able to challenge the validity of the marriage if her husband becomes a woman, or vice versa.
The Referendum Commission states “the constitutional status of marriage will remain unchanged” notwithstanding the removal of this defining characteristic. If this is correct, it can only mean rights enjoyed by a husband and wife will be enjoyed by all who marry, including same-sex couples.
One existing right is the right of a husband and wife to procreate. When Noel and Marie Murray, imprisoned for murder, sought the vindication of this right, the Supreme Court had no hesitation in identifying such a right as essential to the human condition and personal dignity – even though, in that case, it was suspended and held in abeyance.
Procreative rights
Neither the Murray case, nor any subsequent case, has suggested the right to procreate itself can be diminished or extinguished in the ordinary circumstances of married life. Were the concept of marriage to slip its present moorings, it would be a brave lawyer who would argue that such a long-recognised right could be denied or diminished in respect of one category of married persons (those of the same sex) while being available to another category (opposite sex). Such a result would be the antithesis of the equality many supporters of the amendment urge.
What do these principles, about which there can be little legitimate debate, mean for next week’s decision? For many, it brings the issue of assisted reproduction, including surrogacy, squarely into focus: not because such issues are confined to same-sex couples but because a same-sex couple can only exercise such a right by means of assisted reproduction.
Momentum is likely to build behind the suggestion in Roche v Roche that the right to procreate may itself encompass a right to procreate using assisted human reproduction. Donor-assisted reproduction and surrogacy are the concerns for these voters. Emerging technologies are likely to pose further challenges. Many are troubled the amendment would tie the hands of future legislators – or, worse, force their hand.
Uncharted waters
It is too easy to blithely state these concerns are scaremongering when it is the courts that will be left to navigate waters no one has yet charted. No country has extended a constitutionally protected right to procreate to all marriages, including those between the same sex.
Ireland and the Irish legal system will be the petri dish for those dealing in these reproductive technologies. Decisions in the European Court of Human Rights, the Austrian Constitutional Court, the Italian Court of Cassation, the Irish High Court and the UN Human Rights Committee confirm there is no obligation on Ireland to take such a role.
No one can definitively predict whether the courts will find a way to reconcile the various competing rights (of the couple, of the child that it is sought to bring into the world, of broader society and the common good) and if they do, how that will be done. Certainly, no one can credibly deny it will be done against the backdrop of a constitutional right to procreate which, if the proposal is passed, could be invoked by all married couples, same-sex and opposite-sex alike.
Germany, Austria, Italy and Switzerland restrict reproduction using donated sperm or eggs, preserving the genetic link between parents and offspring. Germany, Spain and Italy prohibit surrogacy. For many, preserving our freedom to deal with the new and troubling issues of surrogacy and to safeguard the rights of children will prompt a No vote.
Theirs is emphatically not a decision to withhold respect for those valued friends who have a same-sex attraction. Attempts to portray their decision that way are unworthy of those who make them.
Benedict Ó Floinn is a practising barrister, was a member of the Working Group on the Reform of the Courts Acts and is author of Practice and Procedure in the Superior Courts