Bruce Arnold

Critic of Public Affairs, writing about art, theatre, music and politics

Unforseen and Unintended Consequences of the Same-Sex Marriage

A Study Paper on Same-Sex Marriage, by a group of citizens with advice from senior counsel and academic lawyers, has helped me in my recent lecturing and writing. This on-going work of legal and social policy analysis attempts to fill the gap caused by Government failure to conduct or publish any form of analysis of what they intend in the Referendum. The following issues are covered: the equality argument, the rights of children, solemnising marriage, blood relations, constitutional policy, educational policy and the flawed wording.

As a non-lawyer, and indeed as a non-Irish speaker as well, I became aware of the impact Same-Sex Marriage on the existing legal framework on reading the Study Paper. I was deeply shocked that the Government could not possibly be aware of this. I give here examples from the issues listed above.

On Equality, wrongly identified as the main purpose of the legislation and part of its title, a heterosexual marriage is voidable if impotence or incapacity at the time of marriage is later established. This law would apply to Same-Sex Marriage under the equality heading. However, such marriages would be self-evidently void ab initio by virtue of the fact that the couple could not have children. Under the proposal, a heterosexual marriage and a Same-Sex Marriage would be the same – equal. Consequently, the rules that would void a heterosexual marriage would also apply to a Same-Sex Marriage. Such a marriage would therefore be void from the time the marriage took place. The legislation would require a new set of bans on consanguinity for Same-Sex Marriages. Yet such bans would have no logic. Bans on incest are logical where couples can have their own children. They are illogical for same-sex couples who cannot have their own children.

On the Rights of children, in a Same-Sex Marriage, one or both legal parents of a child would lack a genetic relationship with that child (and hence a natural guardianship interest), while one or more parties outside the marriage could retain such an interest.

Several persons might have concurrent claims to access and guardianship and those claims would vary with circumstance, thus exposing many more children to parental disputes and litigation about guardianship and access. The extended family – in particular, the vital role of grandparents in supporting natural parents – would be completely undermined. Since marriage would no longer be linked to procreation and blood relationship, the whole structure of the extended family relationship would gradually disappear. It is with the rights of children that the destructive nature of Same-Sex Marriage can most clearly be seen, even if the legal anomalies are ironed out. As far as I know this has not been considered by the Government.

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.

Marriage law, and not equality law, is central to the proposed constitutional change which, although called the Marriage Equality Bill, is in fact a Marriage Redefinition Bill. In this context the legal effects of the amendment would be radical and irrevocable.

The core meaning of marriage would change under the legislation. The complementary ingredients of marriage that give it completeness and are vested in sexual partnership would become an optional rather than an essential feature of marriage. As a consequence, much of the current corpus of marriage law, which is based on sexual complementarity, would be undermined.

Asserting marriage equality would imply that whatever is permitted in one case must be permitted in the other. Much of the existing law of marriage would have to be revised and re-enacted - and much of family case law abandoned – to take account of the new concept of marriage in the proposed amendment.

The law of nullity would change for all marriages, in that impotence or incapacity could no longer establish a ground for voiding any marriage. The law of judicial separation would also change in that the ground of adultery would no longer be sustainable as adultery can only take place between a man and a woman.

Blood relationships would be profoundly affected. If the amendment is approved, the current statutory impediment to Same-Sex Marriage would be unconstitutional and a woman would be free to “marry” her mother, sister or daughter and a man likewise his father, brother or son.

Under the law as it stands, a woman cannot marry her mother. The reason is not consanguinity impediment but because they are not of the opposite sex. If the proposed amendment is adopted, a woman would be free to marry (but not to enter into a civil partnership with) her mother, her sister or her daughter (whether natural, surrogate, artificially conceived or adopted). As proof, some proponents of Same-Sex Marriage now acknowledge and even advocate, as an inherent consequence, that consanguinity can have no place in a gender-neutral marriage regime, since the presumptive link between marriage and procreation would be completely sundered.

Constitutional policy has been examined only superficially. The redefinition of marriage by the Government would forfeit the vital interests of society and the natural rights of children to the company of their parents and siblings, in favour of the private interests of a few adults.

Same-Sex Marriage is being aggressively promoted by a small minority of people for their own ends regardless of the effect on society as a whole. It is the duty of the Government and the Oireachtas to promote the interests of society as a whole even if that impacts on the wishes of a minority. It is not possible to grant the wishes of every citizen. Mature and responsible societies know that.

Education policy would have to be reformed and widely changed. Under the amendment the State would be authorised to engage in a programme of positive discrimination in schools and elsewhere in favour of Same-Sex Marriage. The State would inculcate acceptance of the new reality of gender-neutral marriage in children and young adults. I believe parents are as yet unaware of this intrusive reality facing all types of the newly-framed family.

Some of these difficulties in marriage and family law could be resolved through the enactment of parallel primary legislation as well as further constitutional change. No State thinking has been offered. Some changes would not be possible (e.g. consanguinity law issues), as society would not accept them. We clearly need a Green Paper followed by a White Paper to identify the issues and to propose possible solutions and alternative choices.

Bringing forward an amendment on Same-Sex Marriage in advance of this is reckless and irresponsible. Why has the Government chosen to base the amendment on a principle of equality not outlined for the Irish people, a principle that soon becomes absurd. Instead, the proposal is based on a redefinition of marriage that is extensive and profound.

It is impossible to believe that the Attorney General and her officials are not aware of the above issues. Did the Attorney General’s Office advise the Attorney General of the range of issues that would need to be addressed before Same-Sex Marriage became a reality? Did the Attorney General overrule her officials? Did the Attorney General accept the case made by her officials? Was she, in turn, overruled by the Government? If so, why?

The legal consequences are serious and far-reaching. We must be given the answers to all the questions. The referendum must be postponed until the legal issues thrown up by the Study Paper, as well as the pleadings still before the Supreme Court, are comprehensively addressed.

Needless to say, it should not have been left to a few private individuals to bring these issues to the attention of the public. We do this, and I include myself as commentator on a vast array of ill-considered issues, in order to fulfil a duty to the Irish people.

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.

Irish public life has had wide experience of the unintended consequences of constitutional amendments and ambiguous laws – on abortion, surrogacy, the euro, water charges – you name it and we have a mess on our hands and ignorance in our minds. To this I add, with some grief, the fact that Same-Sex Marriage would boost the assisted human reproduction industry and its accompanying paid surrogacy arrangements, with the adjacent exploitation of Third World women. It is hard to believe that we are so blindly facing into what is basic to the existence of society – the institution of marriage.