The proposed amendment to our Constitution has been presented by the Government as simply a formula of 17 words designed to acknowledge the equality of all our citizens, gay and straight. It encourages the view that decent and humane people will vote Yes and only the bigoted or homophobic could contemplate opposing the measure. It says that the proposal has nothing to do with children and involves no change in the laws affecting their welfare.
As a lawyer requested by The Irish Times to write on this subject, I have to point out that these claims are not correct. The proposal involves definite changes in the laws affecting children's welfare.
At present, same-sex unions receive legal protection as civil partnerships. The proposal would bring same-sex unions designated marriages within the scope of articles 41 and 42 of the Constitution. If this happens, two major consequences necessarily follow, both affecting children’s welfare.
First, all courts, as well as the Oireachtas, would be obliged to extend to gay unions the presumption that at present applies to heterosexual married couples: that, all other matters being equal, the welfare of children is best advanced by being reared in a home with a mother and father married to each other.
Tie hands of Oireachtas and courts
I have no expert competence on empirical issues as to the optimum welfare of children, and the Government has presented no evidence on the matter. It is likely it too has nothing decisive to offer on the question. But what it is doing is proposing a change in the Constitution that will tie the hands of the Oireachtas and the courts in the future, when such definitive evidence is forthcoming. It may be that such evidence, depending on its character, would be sufficiently potent to encourage the Oireachtas, in children’s best interests, to contemplate legislation giving priority to heterosexual married couples, but the validity of such legislation would fall under a shadow of uncertainty if the proposal becomes part of our Constitution.
The second major consequence is in relation to assisted human reproduction and surrogacy. The proposal would have the effect of restricting legislative options on these matters where the Oireachtas, in the interests of the welfare of children, wishes to legislate in particular ways. Two gay men can not, by their own actions, produce a child. They can, however, engage in a surrogacy arrangement, involving a woman, in circumstances where the resulting child will not be reared by both his or her mother and father. We have yet to have a proper debate in Ireland about surrogacy. Several other countries in Europe, including France, Germany and Spain, concerned for the welfare of children and also of women, have introduced laws restricting surrogacy or banning it altogether in certain circumstances.
If the proposal on same-sex marriage goes through, there is a real possibility that our Constitution would prevent the Oireachtas from introducing certain laws of this kind. The syllogism that a court would confront is as follows: married couples have a right to procreate; married couples include two gay men, who can procreate only by means of a surrogate arrangement; therefore, a law restricting or, a fortiori, banning such an arrangement would be unconstitutional as it would prevent the gay men from procreating by the only means open to them.
Some electors may support legislation permitting surrogacy in such circumstances; others may oppose it. The point of significance is that, directly contrary to the Government’s assertion, the proposal to change the Constitution has a direct impact in radically restricting the range of legislative options open to the electorate. It gives preference to the choices of adults over the welfare of children.
It is necessary, finally, to consider the implications of the proposal on freedom of religion. We have in article 44 of our Constitution provisions that protect religious freedom. If the proposal is implemented, a new constitutional landscape will emerge. The new and specifically identified right to same-sex marriage will assert itself in potential opposition to religions that understand marriage as involving men and women.
Faith communities
The argument will be made that, while religions may perhaps continue to adhere to that ethos within their own faith communities, any engagement between religious denominations and the public or with the State system will have to respect fully this new constitutional right. In Ireland, faith communities do very valuable work in such areas as marriage guidance and child welfare. It is alarming that Fine Gael refused to give an assurance that State support for the Catholic family agency, Accord, will not be affected by the proposed constitutional change.
Other religious denominations with a similar understanding of marriage are equally affected by the proposed change. A litigant who challenged the constitutional entitlement of religious denominations to register marriages that exclude same- sex unions would have a reasonable prospect of success. More radically, there are implications for the State’s role in prescribing the normative content of education in schools and for withdrawing or restricting funding if it considers that a school programme fails to give sufficient support to the normative premises of same-sex marriage.
Some people may welcome these changes. But no one can argue that they are not of considerable social and legal significance, impacting on the welfare of children. Yet the Government is still maintaining that the proposal does not affect children in any way. Voters may reflect in the coming days as to why the Government is being so reluctant to acknowledge frankly its true impact.
William Binchy is a barrister