With the referendum on marriage set to be held in may, Dr Samuel Shephard outlines what he believes would be the cost of a Yes vote.
In May, the Irish Government will hold a constitutional referendum on marriage. The debate is underway and both sides are right on one thing — a Yes vote will significantly change the way in which Irish law and society think about and deal with marriage. In voting on this critical issue, we must have a clear idea of what we are signing up for: Does same-sex marriage come at a price, and if so, who ends up paying?
The wording of the proposed amendment is unambiguous: “Marriage may be contracted in accordance with law by two persons with-out distinction as to their sex”. The Department of Justice has stated that approving the wording implies an obligation on the State to vindicate that new ‘right’ in its legislation. In this case, the Government plans to establish a commission that will work on re-writing the many laws that will suddenly become, well, illegal. Passing the amendment will allow same-sex couples to contract a civil marriage, but what difference does “without distinction as to their sex” make to everyone else?
The most obvious point is that marriage will no longer have anything particular to do with husband and wife; Irish law will be obliged to hold that the relationship of man and woman is exactly the same as that of man and man or woman and woman. This legal position will have to brush over some rather obvious biological realities. Certainly, the sexual relationship of a man and a woman differs in at least one way from any other – first comes love and then comes marriage, then comes baby in a golden carriage. This unique dynamic of mother, father and child underlies why the constitution is bothered with marriage at all.
Article 41, which would be amended, says that “marriage is the foundation of family”, and that the State must “guard marriage with special care”. This ‘special care’ is not a new idea; almost every society in history has realised that the best way to ensure the welfare of children is to support in a special way the pair bond of man and woman, the only relationship that can tie together children with their mum and dad. Marriage isn’t all about kids, but the referendum is undoubtedly about the rights of children as well as adults.
The desirability of a loving mum and dad is recognised in the United Nations Convention on the Rights of the Child. As the law stands, we can do a good job of upholding that right. However, re-defining marriage will write into the constitution that there is nothing unique about the relationship of husband and wife. What necessarily follows is a legal framework that can no longer give any precedence to supporting the relationship of mummy, daddy and baby. It will become impossible for Irish law to hold that there is any difference between this fundamental unit and the relationships of woman, woman and baby, or man, man and baby.
This extraordinary change will remove any idea that, where possible, kids are better off with mum and dad. This is where the price of constitutional change hits home.
So, legislating for same-sex marriage in Ireland certainly requires that we delete the ideal of a committed and loving mam and dad. But of course, many Irish children are already being brought up, sometimes very successfully, in the absence of one or both biological parents. We have an obvious responsibility to ensure that these children receive fully the social and legal support that they need. However, fulfilling this critical responsibility does not require re-definition of marriage.
What is required instead is a rigorous and flexible guardianship law that recognises the reality of 21st-century family life and works out the best interest of children on a case-by-case basis. Such a law could protect all children, and honour their family situation, without pretending that they don’t have a mother and father somewhere.
We’ve heard from the UN Convention on the Rights of the Child, but do same-sex couples have the right to a relationship that is socially acknowledged and legally upheld? The polls indicate that most Irish people have doubts about same-sex marriage, but perhaps many would like to grant some special status to the committed romantic relationships of their gay friends and family. The European Court of Human Rights has twice considered this issue and concluded that same-sex marriage is not a right. This decision leaves the Irish people with a genuinely open question – is marriage something we confer upon adults as a vote of social recognition, or do we need it as a framework that helps uphold the right of children to have mum and dad around? In the latter case, we are free to reject the proposed amendment and instead to use the law in other ways to support homosexual relationships.
In practice, civil partnership and upgraded guardianship law can provide full legal protection for same-sex couples and their families. Civil partnership already accommodates those described by the Marriage Equality website as “loving committed couples who want to make a lifelong promise to take care of and be responsible for each other.” Marriage “without distinction as to their sex” will mean that Irish law cannot acknowledge anything extra special about the relationship of mummy, daddy and baby, or place any unique priority on holding this relationship together.
The price of same-sex marriage is paid by children.
This article appeared in The Evening Echo last Friday, 13 March.
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