We may not have thought this through

In some ways the debate about the Equality (or same-sex) Marriage referendum reminds me of the first Abortion Referendum over thirty years ago. Before the 1983 referendum practically everyone agreed with the decision of the then government to write into the Irish Constitution an amendment specifically protecting the life of the unborn and ‘the equal right to life of the mother’. The main political parties, most of the media and most people supported it. Eventually it was carried by a 2 to 1 majority.
In the lead up, it was taken for granted that the amendment would be carried, even to the extent that anyone who disagreed with it was demonised. It brought out a certain arrogance in some supporters, convinced as they were by the surveys and the widespread support that the Yes side was home and dry.
Now, in the lead up to this month’s referendum, the shoe is on the other foot.
Lined up on the YES side are all the political parties, practically all the media and, it appears from the surveys, at least two-thirds of the people. So it looks (at this stage) as if the YES side will carry the day by something like 2 to 1.
Again, like 1983, this overwhelming support is throwing up the same arrogance in some supporters of the YES side. Those who say they will vote No are, it seems, often demonised as homophobic, regressive, neanderthal. Even Colm O’Gorman, an excellent debater, on the recent Late Late debate was beginning to sound frustrated and tetchy when the persuasiveness and logic of his pronouncements seemed to fall on some deaf ears.
In 1983, some extreme elements on the YES side pushed graphic pictures of aborted foetuses in the faces of those unconvinced of the wisdom of the pro-life referendum. Their aggressive approach infuriated and further alienated those they regarded as opponents and I suspect, cost them votes.
In 2015, the effort by extreme elements on the YES side to ridicule those with opposing views as Catholic extremists will certainly lose them votes and the often unfair and biased media consensus is beginning to grate on many who actually support the YES side. Like Irish Times columnist, Róisín Ingle, writing that voting Yes was ‘a no-brainer’.
The truth of the matter is that an effort to bludgeon people into voting a particular way does not work and is counterproductive. Over-kill, in more ways than one, generates more opposition than support.
In a recent interview on RTE Radio One’s Morning Ireland programme, Archbishop Eamon Martin of Armagh, enunciated his position on the NO side in a very calm and measured way but he allowed himself to be dragged into an issue that isn’t central to the present debate.
The interviewer asked him if the referendum is passed would the Church continue to perform the civil aspect of wedding ceremonies. Martin attempted to widen the discussion but the interviewer insisted on repeating the question and the archbishop had to admit that no decision was made on this but that it was an issue.
Let me say, first of all, that in my opinion (for what it’s worth) Archbishop Martin (and other bishops) are unwise to even suggest that priests solemnising marriages in Catholic Churches would, in the event of a YES vote being carried, no longer agree to act in a civil capacity.
While I’m very aware that many priests are fed up acting as unpaid civil servants in carrying out a civil responsibility on behalf of the State – we weren’t including in Bertie Ahern’s famous bench-marking fiesta – I think most priests would not want couples who seek a church marriage to have to incur the extra expense of a separate civil ceremony. Nor would they want to deal with the inevitable criticism of couples that would attend such a policy.
Another reservation I have about that ‘exemptionist’ policy is that it is either presented in the form of a studied huff or as a threat. On the one hand the Church is saying if you don’t do what I want you to do, I won’t co-operate – like a petulant child who says he will take his football home if he’s not allowed to win the game. Or on the other hand the threat of using a priest’s co-operation with the State as a bargaining chip.
And even though Martin made it clear that there was no threat involved, it was difficult to square this with what most people would interpret as a threat. If it walks like a duck, quacks like a duck . . .
This suggested policy – of not acting in a civil capacity at weddings – has no purchase, shouldn’t be introduced into the debate and the Church would be extremely foolish to implement it. Do we really need yet another regulation to further dissuade Catholic couples not to marry in Church?
Another consideration is that the ‘threat’ to opt out of the civil side of marriage feeds into the hands of those who want a greater division between Church and State and whose agenda is moving the Catholic Church to the margins, out of sight and out of mind. As Humphrey Appleby used to say to his hard-pressed superior, ‘Minister, we may not have thought this through’.
I suspect that the perception that the Church is ‘threatening’ to use its position to punish the State by pulling out of its present policy of priests performing the civil aspect of wedding ceremonies will do damage to the NO cause.
On the edges of debates like same-sex marriage, it’s almost inevitable that there will be people who will go overboard and end up even alienating their own hinterland of support. On whatever side they are they need to be reeled in if a debate is to be conducted with respect and with grace.
Respect isn’t just about using the word often. You can sense it when it isn’t there.

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  1. Joe O'Leary says:

    The English bishops made the same threat, but after the legislation came into force there was absolutely no follow-up on their threat. It was not so much a huff and a bluff. And the result is a further loss of credibility.

  2. In 1983 as you said the No side were in the minority,but now with the benefit of hindsight the wording in the eight amendment in relation to the equal right to life of the mother and the unborn child is proving problematic as we have seen in recent years and is been challenged. If the yes side wins and it is very likely ,it will be twenty or thirty years before the true picture will emerge of the unintended consequences. It is precisely for that reason that the citizens of this country should think very carefully about what they want inserted into the Constitution. In 1983 just before the referendum I was pregnant, had serious complications at six months, almost died and the baby was stillborn. It felt very surreal because I had just experienced what everyone else was debating about and I was totally dependant on my doctor and at the mercy of the will of God. I also remember afterwards seeing the graphic pictures of aborted foetuses ,was deeply upset by them and I made my feelings known in no uncertain terms. So you are so right ,respect and grace ,win ,lose or draw. Also it was totally unnecessary for the Archbishop to say anything about the civil register. Great article Brendan as usual.

  3. Pádraig McCarthy says:

    The problem may be deeper than this: “Archbishop Martin (and other bishops) are unwise to even suggest that priests solemnising marriages in Catholic Churches would, in the event of a YES vote being carried, no longer agree to act in a civil capacity.” If it were simply that, it would be like a “petulant child.”
    The more serious problem may be this. If the amendment is accepted, the constitutional definition of marriage will be that of a gender-free union. Our church ceremony, recognised by the state up to now, is clearly predicated on a man-woman relationship. In that event, not just our ceremony but that of other churches may be invalid.
    The new constitutional definition, of course, would accept man-woman union; not however as man-woman unions but as gender-free unions. Even if the Registrar General were to approve our present ceremony as acceptable in the new regime, that could be unconstitutional. The legislation to implement the changes is at present in draft form, and does not appear to address this. The Registrar General could of course request churches to change their ceremonies so that they clearly show it is a gender-free union they are solemnising. It’s unlikely such a change would be made.
    In effect, it is not that the church would behave like a petulant child, but that the State would have to declare that our ceremonies are not valid for civil registration. All church solemnisers would automatically be removed from the list of solemnisers.
    This would take effect as soon as the President signs the amendment into law, shortly after the Referendum.
    This would leave a major difficulty. 5823 solemnisers are currently registered to solemnise marriages. Of those, 5695 are categorised as Religious Solemnisers. If they proceed as before to complete the civil signing at church weddings, those marriages may be invalid in the eyes of the State. The remaining 128 would be left with all the work. In addition, couples marrying in church would have the extra concern of possibly not being validly marries for civil purposes, with whatever ramifications that may bring.
    The government does not seem to have addressed this possible crisis. I am not qualified in any such legal matters, but the matter needs to be addressed urgently.
    Until it is sorted out, it may be pastorally wise to advise any couples celebrating a church wedding in the coming months to consider whether they should arrange a civil ceremony also. Not because the church is petulant or in a huff, but because the State has rendered the religious ceremony invalid for civil purposes.
    Perhaps some visitor to this website may have legal expertise to offer an opinion as to whether there may be a problem?

  4. Eddie Finnegan says:

    I am glad to see that Brendan has nailed this dog-in-the-manger silliness on the part of some bishops, hopefully for good. They still have a week or two to think it through. Members of the Bishops’ Conference should make a firm resolution before 22nd May that this huff/bluff/threat won’t even get a mention at their Maynooth meeting next month. Of course they could instead lodge a demand with the Government for proper Civil Service scales for Parish Priest-Registrars, preferably backdated to 1922 or perhaps to pre-Famine days. Why should Irish parish priests continue to facilitate the Heritage Tourist trade without adequate recompense for their book-keeping efforts over two centuries?

  5. Doesn’t it depend Joe on what legislation follows the referendum. If the priest is acting in a civil capacity and refuses to marry two men/women then he could be acting contrary to the law. In the UK the legislation allows for religious exemptions. We don’t know what the legislation in Ireland will be and in any event legislation could, without the need of a referendum, be changed at a later date. Why should there be any exemptions for religious people when acting on behalf of the state. Legislation last year in the Netherlands removed marriage related exemptions for religious civil servants.

  6. The last sentence could be better expressed as,
    marriage related legislation last year in the Netherlands removed religious grounds exemptions for civil servants there.
    I just had a look at statistics from the Netherlands. In 2000 there were 88,074 marriages there, in 2013 the number was 64,549. The Netherlands is no model for marriage.

  7. Joe O'Leary says:

    ” If the priest is acting in a civil capacity and refuses to marry two men/women then he could be acting contrary to the law” — surely this is a false problem? The church already refuses to marry divorcees and that has never been a problem for the validity of the marriages that are registered in church.
    In fact, I think it might be a good idea to have a separation of church and state here as in France, where one has two ceremonies, one in church and one in the Mairie.

  8. I am very concerned about this on two levels.
    One being the possibility of my upcoming Catholic marriage being unconstitutional as Pádraig McCarthy excellently demonstrates. Secondly, I attended the Registrar’s office at the beginning of April and have received my MRF with my local priest as solemniser. If the Bishops follow through, will the MRF have to be amended for both solemniser and venue?
    If the referendum passes, will the Bishops honour those of us who have already given our notice to marry prior to the referendum or will I have to (as alluded to above) re-arrange a civil ceremony alongside my Catholic marriage? Would I be able to arrange for a civil solemniser at such short notice, given the fact that there are so few?
    My fiance and I plan to marry in September and there was me thinking that I had only the future in-laws to worry about!!
    I can understand the Bishops predicament and the result may eventually be two ceremonies in the future, as is the case in many countries on the continent but what about all the couples like ourselves who plan to get married in the very near future? This is an issue not just for the Irish hierarchy but the government also. This situation urgently requires clarification.

  9. Prodigal Son says:

    Having been to weddings in Church over recent years I have to conclude that on the basis of what one can see and hear, most of the couples getting married displayed very little awareness of a sacramental or liturgical event, despite the best efforts of most of the priests concerned.
    In one case in 2014, the couple engaged in a giggling session throughout the Mass, even during the Consecration. Prior to this the misfortunate priest, in an effort to improve things had commended the bride for not demonstrating “too much” excitement. It didn’t work.
    I am not advocating a morose or dull solemnity. But sacraments should be received with due respect.
    Putting it mildly, in practically all cases, previous or subsequent Mass attendance was improbable.
    I attended one registry office wedding in City Hall in Belfast. The mood and behaviour there differed not at all from what I observe in Catholic Churches. Indeed the serious nature of marriage was spelled out in unambiguous terms by the registrar at the start of the ceremony, bringing all to order.
    For this reason I believe in the separation of the sacramental and secular legal ceremonies. It would help highlight the nature of sacramental marriage and help focus couple’s attention on it, and lead them to clarify their motivation for availing of the sacrament.

  10. Pádraig McCarthy says:

    @5 & @7 & @8:
    There should not be a problem about a religious solemniser who refuses to solemnise a same-sex marriage, in the event of a Yes vote and the subsequent enactment of the Marriage Bill 2015. Head 7 of the draft Bill is: “Religious solemnisers not obliged to perform marriages.” The Bill, however, is just in draft form; we do not know what delay there may be in bringing it to effect. The wording under Head 7 certainly needs clarification.
    It may be in the future that there will be two quite separate ceremonies, civil and religious, as in other places, In the meantime, we have our present situation.
    The problem may rather lie in whether a religious ceremony predicated on an exclusively heterosexual marriage would be constitutionally valid if marriage is redefined not in specifically inclusive terms, but in exclusively gender-neutral terms, and the religious ceremony clearly does not validly solemnise marriage as understood in the revised constitution. It is not just the signing of the form; it is the validity of the ceremony which may be in question. That could take a considerable time to clarify; we do not know how the courts would decide, if it comes to that.
    Those planning to marry in a religious ceremony who have not yet made the civil arrangements will be able to make arrangement – if there is sufficient State recognised staff for the extra demand. The immediate difficulty may be for those who have already made civil and church arrangements, for whom time is short, and if the State does not make necessary arrangements.

  11. Thanks Pádraig for your response.
    While I can understand the Bishops difficult position, I wonder if it is necessary for Catholic priests to withdraw from the civil aspect of marriages?
    Article 44 5° of the Constitution states that ‘Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.’
    Also, the Draft of the General Scheme of the Marriage Bill 2015, Part II Head 7 states: ‘Religious solemnisers not obliged to perform marriages.
    Provide that:
    7._ Nothing in this Act shall be construed as obliging:
    (a) a religious body, within the meaning of section 45 of the Act of 2004, to recognise a particular form of marriage ceremony for the purposes of
    section 51(3(c) of that Act; or
    (b) a registered solemniser, who is registered in the Register of Solemnisers on behalf of a religious body, to solemnise a marriage in accordance with a form of ceremony which is not recognised by that religious body.’
    This would suggest that Catholic priests are exempt from performing same-sex ceremonies in the event that the referendum passes.
    Personally, my fiance and I would have had no problem organising two ceremonies if given sufficient notice but as we have already made our religious and civil arrangements, (both being performed in our Church) this has the potential to cause a lot of hassle. We probably have enough time considering that we’re not getting married until September but I do feel for others (like my cousin) who intend to marry in the next few weeks.
    Does anyone know when the Bishops will make their decision?

  12. Mary Vallely says:

    As I live north of the border I do not have a vote and reading the heartfelt dilemmas of many on this thread and others, in one way I am glad I do not have a vote. We are far from mature in our attitude to those who differ from us. Reading the courageous Ursula Halligan this morning shows us how our puerile understanding of sexuality has damaged lives.
    So, we are on a learning curve and perhaps we aren’t quite ready to decide whether Yes or No is the right answer. I pray that whatever happens this day week that there will be no triumphalism from whichever “side” wins. Too many people have been hurt and are hurting still. My heart and my head say ‘Yes’ but for many of my age (64) they are torn between listening to their bishops and priests and their own conscience and cannot be castigated for saying that they are not sure, that they need more time, and perhaps voting ‘No’. It takes a long time to change a mindset but we’re getting there slowly but surely in accepting and learning to love difference.

  13. Pádraig McCarthy says:

    M Tiwari @ 11:
    Yes, priests will not be obliged to celebrate same-sex ceremonies.
    As regards what else may happen:
    We just do not know yet what may happen. It may be the bishops will take legal advice – I think perhaps they may meet before the end of May to discuss it when the result of the Referendum is in. If the Referendum vote is No, then things will remain as they are.
    If the vote is Yes, we must wait to see.
    There may be an article about this question in the Irish Times tomorrow, Saturday 16 May, by Benedict O Floinn, a barrister.
    If the bishops make no move, then all may remain as at present, unless there is action by the Registrar General, or if there is a court challenge to religious ceremonies being accepted by the State, perhaps by some group pushing for complete and total separation of State from all religious connections. If there were a court case, that could take a long time.

  14. John Collins says:

    LGBT people have suffered enough over the years and I for one want to shout ENOUGH. We have alienated our brothers and sisters into a place of fear and anger. It is time to put the red herrings aside in relation to this referendum. The referendum commission deals with the questions raised in this tread. Please read them on their website, or in Fridays (15th) IT; Referendum Commission chairman and High Court judge Mr Justice Kevin Cross responds to many questions raised. Ursula Halligans piece is so honest and a must read for all of us in the ACP. Not such a good read is the Catholic Alliance for the Defence of the Family and Marriage group in Fridays IT(15th). If there were one compelling reason to vote yes, as I am, then this is it. Using the word catholic in their piece fills me with anger. This kind of awful stuff makes our young LGBT people targets for bullying and homophobia or worse. On the issue of Christian marriage it will remain the same after the referendum no matter what the result. If Eamon Martin and the bishops decide to go the petulant route so be it. We can then add married couples to the list of alienated people in our church which seems to be getting longer by the day. Then perhaps they will be happy as we can just look after the ones that agree with us and that list is definitely getting shorter. The church is becoming irrelevant not because of the outside influence but because the church itself is making an excellent job of it themselves/ourselves. To the LGBT people who may read this “You are Loved in the image of God” – focus on that and be assured this priest is voting yes for equality and because it is the RIGHT thing to do.

  15. There has been so much excellent debate and discussion on this contentious issue on this ACP site and I wish to say thank you to all of you who took the time to contribute. Over here in Scotland we had nothing like this when the equivalent legislation was being proposed and then went through the Scottish Parliament.
    However, I want to support everything John Collins@14 has said and, in particular, his first few sentences. I think they get right to the crux of this whole matter.

  16. Pádraig McCarthy says:

    We have not thought this through.
    The Marriage Referendum seeks to address a matter which needs attention. Those who are gay are among those who have not been treated with respect and justice. I have, however, two problems with the Referendum:
    1. We will be invited on Friday to mark X in either the Yes or the No box. Sometimes such a question as posed does not offer the reply a person wants. For example: “Have you stopped cheating on your taxes?” The Marriage Referendum is such a case. The only solution the government proposes is not the right answer.
    2. The vote is on the “Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015.” Arguments seem to focus on our equality as human beings and citizens, which I support 100%. But the actual question is not on whether people are equal. It is on whether a union of man and woman is to be equated with the union of two people of the same sex, which is clearly not the case.
    Many aspects to marriage are held in common with other relationships. If marriage is simply a matter of two people who love one another there is no problem. But you and I know that a man-woman relationship is more than that, even if the Constitution says otherwise. It is not law that brings about this difference; it is the way we human beings are made.
    What is distinctive about the union of a man and woman is the special connection with the conception of a child. Conception, of course, does not always occur – it can be prevented deliberately, or it can be prevented by factors such as age or disease. But only a man and woman have the capacity to act together in such a way that a conception ensues. The Amendment would remove what is distinctive about Marriage as we know it now. For this reason, the union of man and woman needs to be provided for differently in law than a same-sex relationship.
    The right solution would be perhaps to make separate provision in the Constitution for same-sex unions, not under Marriage. This would recognise physical reality.
    Some will say this is unjust discrimination. This year, Ireland won the Six Nations Rugby – twice: the Men’s team and the Women’s team. Why two? Because of physical reality. It would not be wise to put the Men’s team against the Women’s team. To treat them separately is not discrimination. It is common sense, responding to reality: the way we’re made. If for Rugby, then all the more so for Marriage.
    If we say Yes to the Referendum, we’ll have that for the coming generations. If we say No, we’ll have a chance to do it right. On Friday, the people are the referee.
    Incidentally, whatever the result, the Catholic Church in particular is in a No Win situation. If it’s a Yes vote, some will say: “Serves you right! You should have learned your lesson!” If it’s a No vote, they will say: “It’s all your fault! Another fine mess you’ve got us into!” That’s reality for you.

    1. Pat Rogers says:

      Padraig, You have done a great service with your well-researched, calm and reasoned comments upon this debate. Hardly anyone has done so much to ensure that we will have thought it through, before voting. Now we can but cast our ballot and take a deep breath as we await the result of the vote.

  17. Thanks for your reply John Collins.
    It is indeed correct that Mr. Justice Kevin Cross does state that if the referendum passes, that there will be no change to the status of opposite-sex marriages but my concern is that it does not clearly specify if this applies to marriages solemnised in a religious ceremony. I have no doubt that opposite-sex marriages solemnised in a civil ceremony are and always will be constitutional. The apprehension that I have is regarding a possible future challenge through the courts as to the validity and constitutionality of those (like my fiance and myself) who have made arrangements to marry in a religious service, based on the unequivocal heterosexual nature of it.
    Here is a link to the full interview with Mr. Justice Cross: http://www.irishtimes.com/news/politics/marriage-referendum-q-a-what-you-need-to-know-1.2212840
    Bruce Arnold raises these potential future complications through the following observances:
    ‘Solemnising marriage in a religious ceremony would invite special scrutiny, with the proposed amendment to the Constitution raising profound issues about the right to contract a Same-Sex Marriage. A legally binding marriage in Ireland may be celebrated in a civil, secular or religious ceremony. It is not clear if the proposed Article 41.4 would create or imply a right to contract a Same-Sex Marriage in a religious ceremony. The wording of Article 41.4 should clarify this situation. No proposal for this is being put before us.’
    and subsequently
    ‘Clearly another unforeseen and unintended consequence of Same-Sex Marriage is the big question mark that would overhang the future solemnisation of civil marriages in religious ceremonies. It is very doubtful if solemnisation of civil marriages in churches could continue under a same-sex marriage regime. The constitutional amendment would not permit the Registrar of Marriages to approve a religious ceremony under the Civil Registration Act because such ceremonies are and will remain explicitly heterosexual. Contrary to what is implied in the draft Marriage Bill, the amendment would put an end to the solemnisation of marriages by religious ceremonies on equality grounds. This eventuality, of a drastic character, would affect most couples in the country intending marriage.’
    For the full article see: http://www.brucearnold.ie/files/unforseen-unintended-consequences.html

  18. Joe O'Leary says:

    Thanks to Mary Vallely and John Collins for focusing on the human values at stake here.
    Ireland made history as the last nation in Western Europe to decriminalize gays, and will make history again this week either as the first European nation to bring in gay marriage by popular vote or by refusing it by popular vote. Actually waiting until 1993 to decriminalize gay men’s lives was spitting in the face of history. The same might be said of a No victory.
    I think it would be excellent if marriages were celebrated both civilly and (for those who want it) ecclesially in separate ceremonies. The would redouble the communal meaning of the celebration. It would also reinforce a sense of civic bonds, too often usurped by the Church. It would also allow people to be more discerning about the celebration of sacramental marriage, which is more than a passport to civil status.

  19. Con Carroll says:

    will the world end after May 22? the Irish courts said, that hetrosexual people who wish to avail of the option of surrogacy don’t have that right
    remember that we have people using children in a emotional manner. we should ask these people, where were these people concern when people who were survivors of state, religious institution began to raise their voices.
    Vote Yes

  20. Joe O'Leary says:

    Does the Irish state in fact accept religious ceremonies as valid civil marriages? Would this apply to Moonie weddings, too, for example? Surely the couple should sign a civil register as well as the church record? There have been cases where church weddings were bigamous in Irish law. Mixing religious and civil law is a formula for a lot of abuse and should be stopped.

  21. Pádraig McCarthy says:

    Thanks, Pat (@21).
    The extraordinary thing is that in a matter as personal and enriching as our sexuality, the drive to include in Marriage those whose sexual orientation does not correspond with the current sexuality in Marriage, we propose to replace a sexually differentiated fundamental institution aimed at the stable bonding of a father and mother and any children they may have. In its place the proposal is to put an institution where “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.” This is an asexual juridical construct in which a same-sex union by its very nature is incapable of itself of procreation. This does not seem to me a wise exchange.
    In the effort to extend the status of Marriage, where the sexual relationship is central and vital, the amendment legally makes sexuality peripheral, if not irrelevant. This is not Armageddon: people will still celebrate their sexuality; but law says that it is not a consideration in Marriage. This is a fundamental change. Law will not reflect reality.
    If amended, the Constitution will not contain two parallel institutions of marriage. There will be a single institution – one which will be gender-neutral (“without distinction as to sex”), and which sets the legal status of all marriages. It cannot be said that this is simply an extension of marriage rites to others previously disqualified, or that it does not change the definition of marriage. The status of Marriage which same-sex couples seek to share is thereby radically altered. Sexuality, which would be celebrated, is instead sidelined.
    Pat says: “we await the result of the vote.” When we see the result of the Marriage Referendum, it may seem that the issue has found closure. The courts, however, may be presented with a case which pits an irresistible force against an immovable object. The irresistible force would be the Yes vote. The immovable object would be the existing provisions of Article 41 of the Constitution, which remain unchanged.
    The immovability is found in Section 1:1 of that Article: “The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”; and Section 3:1 of that Article: “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded.” “Inalienable and imprescriptible” is a clear statement of immovability, beyond even the power of the State.
    So, since the Family is “a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”, and the Institution of Marriage is the foundation, then implementing the proposed amendment would contravene the position that the Family has rights “antecedent and superior to all positive law”, since the implementation of the amendment would be the application of positive law. Could it be that to implement the amendment we must first have another Referendum to amend the existing text of Article 41 to nullify those “inalienable and imprescriptable rights”? In opting for a quick and easy answer to the situation, the government may have stirred up a lot more trouble.
    A court decision to resolve the contradictory elements would be difficult to predict. Ms Justice Dunne said in the Zappone-Gilligan case: “… one has to bear in mind all of the provisions of Article 41 and Article 42 in considering the definition of marriage. Read together, I find it very difficult to see how the definition of marriage could, having regard to the ordinary and natural meaning of the words used, relate to a same sex couple.”
    Much better if the government had opted to provide the desired constitutional protection for same-sex unions outside of the constitutional Marriage provisions.

  22. Padraig McCarthy has got to the nub of the matter. The state pledges special care to Marriage (which it has never done anything about, by the way0 not for its own sake, but because it is the foundation of the Family. Heterosexual marriage is ordered towards procreation and rearing of children, and in the vast majority of cases it is the foundation of a family.
    Same-sex marriage can never be the foundation of a family without the involvement of some third party. in fact, any child of a same sex-couple, unless adopted, will be reared in an environment where one natural parent will be absent by design.
    If this is passed it will place an inherent contradiction in the constitution.

  23. Padraig@22. “Much better if the Government had opted to provide the desired constitutional protection for same sex unions outside of the Constitutional Marraige provisions.”
    I couldn’t agree more. On 14th March last on this site I suggested that a third option be put on the Ballott Paper ,the upgrading of the Civil Partnership to provide whatever was needed to make it equal but separate. All of this could have discussed if the Government hadent rushed it through. But then what do I know, I only attended the University of Life,am a widow and mother of a large family, the Family that the constitution States is supposed to be the natural primary and fundamental unit group of Society. It doesn’t feel like that anymore.

  24. Joe O'Leary says:

    The Yes victory is so huge that one must regard it as “overdetermined” — that is, a considerable number of factors converged, mutually reinforcing their momentum — young Ireland instinctively, inerrantly, went for the target, even invading the country in their thousands from their outposts of exile. It is hard to think of any other occasion in Irish history where a message has been delivered so loudly and clearly — a rich, multilayed message, calling for reflective interpretation.

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