Constitution review urges rights for unwed couples

Hmm_Messiah

http://www.ireland.com/newspaper/front/2005/1107/3638542542HM1CONSTITUTION.html

This made grim reading, mostly in how they seemed to have disregarded any change to the constitution because the majority favoured no change. I'd of hoped the Law and State would want to protect and ensure the rights of all.

I also find laughable/insulting the fears expressed that rewording could cause the horror fo gay marriages.

If you take 10% of the population being gay, then thenumber with partners, who want to affirm the relationship by marriage, what numbers are you talking about? And how can they affect the institution of marriage? Doesn't it in fact re-affirm its place that people want the option?

And we've already legislated away any sense of permanency , so seems to be taking the safe route out of laziness or disinterest more than anything else.

"whether based on marriage or not" ...simple words , which they now seem to be rowing back from. very sad.

finething

The all party committee on the constitution with regard to the reform of Family law is split, it appears a minority report from labour, the green party and sinn fein will be made. this is bad news and indicates that the report is going to be very conservative in its outlook. for a speech on the subject see the following link.

http://www.labour.ie/press/listing/20051112100405.html

this was given yesterday at the labour family law reform public meeting. i think it is sad the it appears gays are going to have to wait quite some time for real equality.

damien

I was at that yesterday. Seems FF and FG are not going to recommend any changes apart from giving recognition to kids. It isn't just gays and lesbians who should be pissed off over this but fathers who will still have fck all rights to their kids except when it comes to alimony, unmarried couples with kids and anyone who doesn't believe that a family has to be married.

FG and FF cannot be interested in equality if they refer to a redefnition of the family as something which could be "misinterpreted and divisive".

UU

So, let me get this right, Labour, Sinn Féin and the Green Party are the only ones to support the Civil Partnership Bill and Fianna Fàil, Progressive Democrats and Fine Gael are being very orthodox and conservative about it and very few of them will support it? The Bill doesn't really have anything got to do with marriage as it isn't replacing it but is allowing homosexual and unmarried heterosexual couples have similiar rights to that of married couples. The family is the basic unit in society but doesn't just refer to the typical nuclear family (i.e. two parents of opposite gender with children) but to lone-parent and a married couple so perhaps the the definition in the constitution is a bit outdated.:rolleyes:

I think this bill will eventually have to come in as less couples are getting married every year and that will in turn pose financial and social problems for the government in the future. I think the government is being over-protective about "the family being attacked"! A phenonomel 10% of the population is homosexual it says also! - they ought to re-consider I think. We just need a new government who supports gay rights in order for this bill to come into effect so judging by the way Ireland is, it will probably take about 10 - 20 years for this to come into effect. Ireland is always a few years behind everyone else!:mad:

Annasopra

So, let me get this right, Labour, Sinn Féin and the Green Party are the only ones to support the Civil Partnership Bill and Fianna Fàil, Progressive Democrats and Fine Gael are being very orthodox and conservative about it and very few of them will support it?

They all support civil partnerships/unions. (apart from FF Officially) FF/PDs could legislate tomorrow but don't want to. This discussion was not about the civil partnership act 2004

The Bill doesn't really have anything got to do with marriage as it isn't replacing it but is allowing homosexual and unmarried heterosexual couples have similiar rights to that of married couples

I presume you are talking about this which has been stalled indefinitely- I really don't understand why you are saying it has nothing to do with marriage - the bill provides that civil partnerships would have the same rights as that of marriage. It would not give unmarried heterosexual couples to that of married couples - UNLESS they enter into a civil union

A phenonomel 10% of the population is homosexual it says also

who said this

UU

Hmm_Messiah wrote:

If you take 10% of the population being gay, then thenumber with partners, who want to affirm the relationship by marriage, what numbers are you talking about? And how can they affect the institution of marriage? Doesn't it in fact re-affirm its place that people want the option?

Johnnymcg, I think Hmm_Messiah said this at the start of this thread so maybe you should ask him/her.

Johnnymcg wrote:

I presume you are talking about this which has been stalled indefinitely- I really don't understand why you are saying it has nothing to do with marriage - the bill provides that civil partnerships would have the same rights as that of marriage. It would not give unmarried heterosexual couples to that of married couples - UNLESS they enter into a civil union

Ok, perhaps you might be so kind to explain the whole difference as I thought the Civil Partnerships Bill 2004 was to allow homosexual and unmarried heterosexual couples to have similiar rights to that of married hetero couples.
So is this got to do with changing the constituation rather than bringing in a seperate bill or what? I'm just as confused???

damien

The "Bill" was never a bill. It does not exist anymore. It was withdrawn before it was even debated.

Annasopra

OK UU - marriage is an institution recognised by church and state

The Irish constitution has the following paragraph

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

The Irish Constitution has primacy over legislative law.

This provides several problems - it means that any attempt to redefine marriage or the family by legislation could potentially be struck down as unconstitutional. It means that in practice families other a man and a woman and children can be discriminated against and it also means that "gay marriage" is very difficult to legislate for. The Goverment fobbed off gay rights activists by setting up a committee to look at this and other issues, but the committee (dominated by FF and FG) is not reccommending any changes of the above.

In an attempt to get round the issue of marriage being a religious institution someone somewhere came up with the idea of having civil unions/partnerships - basically this is creating another "marriage like" institution but saying "it's not marriage" - in some countries they would not have exactly the same rights and responsibilities - so civil unions can range in what they allow (from coutry to country) - The idea to provide to them to heterosexual non-married couples was (in my opinion) originally about giving an alternative to marriage because people were not taking up the options of marriage.

The model proposed by Norris was a bit too simplistic because - it just said something like - Civil Partners will have the same rights as married people. There is talk of a redrafted bill but no-one is certain.

Ok, perhaps you might be so kind to explain the whole difference as I thought the Civil Partnerships Bill 2004 was to allow homosexual and unmarried heterosexual couples to have similiar rights to that of married hetero couples.
So is this got to do with changing the constituation rather than bringing in a seperate bill or what? I'm just as confused???

What I was saying was that the proposed bill did not give anything at all to any unmarried couples (same or opposite sex) UNLESS they took up the option of a civil partnership

I hope that is clearer for you

Hmm_Messiah

The Irish constitution has the following paragraph
Quote:
The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

The Irish Constitution has primacy over legislative law.
This provides several problems - it means that any attempt to redefine marriage or the family by legislation could potentially be struck down as unconstitutional.

That there "may" be problems with any legislation is true; but I wonder how much some people use this argument so as to not to have to investigate further the potential solution to what is been sought.

No definition of marriage is given, and so this is open entirely to the judgement of the Supreme Court. There is no constitutional block to same sex marriage, all that is required is for a judgement from the Supreme Court. IF there was sufficient argument to show a right to marriage for gay people then the court can give protection to that right as it understands the constitutionto protect the rights of all citizens whether those rights are innumerated/specified in the constitution or not.

As same sex weddings become part of the norm in similar societies, then it could be argued that the "meaning" of marriage has evolved to be encompass same sex marriages.

ANd while the Bill constantly mentione dmay have been simplistic, there is offed no need for complicated detailled change to wording. In fact there need be no specific amendments to a particular clause, a new clause as simple as "each citizen will enjoy entirely the same rights and protections irregardless of gender or orientation" it really is that simple.

WOrds are not difficult, its the mindset of the people who can make the change that seems immoveable

damien

Hmm_Messiah wrote:

No definition of marriage is given, and so this is open entirely to the judgement of the Supreme Court. There is no constitutional block to same sex marriage, all that is required is for a judgement from the Supreme Court.

Unless you have very liberal judicial activism in the Supreme court you are not going to have them rule on samesex marriage being as valid as traditional heterosexual marriage. As far as I know there have been precedents in previous cases where marriage was defined as being between a man and a woman.

The Law is not made up of just legislation and the Constitution, it is also there in case law. It would be extremely extremely difficult for a court to disregard precedent and given the current conservative elements in the HC and Supreme Court I do not see them doing this.

Even if they were to disregard precedent they will look at the constitution and what the makers of the constitution meant when they were creating it. We have a very strong Roman Catholic constitution, just look at the preamble*:

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,
We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial

This will be used to show that marriage is a religious term and it will mean traditional religions and traditions.

Just because it does not say marriage is not between a man and a woman, a court will examine the constitution and the makers of it and decide what they meant by marriage when they made it. What do you think DeValera and the Bishops meant by marriage? This will overrule arguing about society changing.

the court can give protection to that right as it understands the constitutionto protect the rights of all citizens whether those rights are innumerated/specified in the constitution or not.

Yes we have guaranteed rights and freedoms in the constitution but they are as clear as mud for the majority, giving the Govt and the Courts some leg room but at the same time the constitution is also framed in religious meaning and morals and will uphold them.

In fact there need be no specific amendments to a particular clause, a new clause as simple as "each citizen will enjoy entirely the same rights and protections irregardless of gender or orientation" it really is that simple.

It certainly is not. Again as above. Marriage has special protection in the constitution, if it is undermined by having the special rights that are given to married people (such as tax breaks) given to non-married groupings then it is an attack or an undermining of marriage. Any law that does this will be deemed unconstitutional. It will be seen as an attack on marriage and on the family.

WOrds are not difficult, its the mindset of the people who can make the change that seems immoveable

Words are extremely difficult in terms of the constitution, thus why the constitution does not change on a yearly basis, why there is so much deliberation when drafting legislation and referenda and thus why there are so many High Court and Supreme Court cases on matters one would have thought were obvious and yet the rulings can be very surprising.

As for the mindset of the people. The Judges are there to dispense justice. If they were to rule that marriage can be for all not just heterosexual couples then they are making new laws and they are significantly changing society (for the good I'd argue but that is not the point.) Judges are not there to make society evolve, that's what the lawmakers and the law drafters are for, namely the politicians as mandated by the people who elected them. Activism can go both ways and we can see the outcome in the states where the possibility of abortion being repealed is becoming a lot stronger. Here there is good checks and balances to prevent jusdicial activism of any type. Though sometimes it does still occur.

The mindset of the Govt is straightforward. They want to keep as much support as possible and they want to keep the masses happy. Even the once liberal labour party is saying they don't want marriage for all and will happily sell samesex couples out for something less than marriage. FG, FF and the PDs want to keep the status quo.

What we need is a constitutional change, a court case challenging this will lose and will cost €100,000's.

*Tis really sad that these days I carry a copy of the constitution with me.

Hmm_Messiah

all true, but I was only commenting on the idea that the constitution is the block to same sex marriage, it isn't (necessarily)

maybe a liberal Supreme Court is the way to go. I get every thing you said and agree more or less. I undertstand all about the constitution, and Statute and Case Law and EU law. My point remains though that there are less barriers than "some" people would like to argue,

The Supreme court could decide that marriage has an undertanding equal to that of the RC church. It could equally recognise that this now fails the citizens of the state at this time . Understanding marriage in a broader context is possible, its for the Supreme Court to interpret. Even accepting the Catholic meaning, it coud be argued any defnition of marriage is contained only in canon law not dogma, and is open to change and re-interpretation.

But I disagree that words are extremely difficult with the constitution, I believe this to be what people of a certain agenda want to maintain as true. When writing this I was thinking of the original article where a simple words(whether based on marriage or not) were made to be so difficult.

Best law is simple law. I thinking its barking mad that in 2005 we depend on a document written mostly by one man , or "guided" by him and a hierarchial prejudiced Church. The constitution barriers to EU admission where easily enought legislated for and amendmnets made.

Judges not only dispense justice but can and do define it. They also have a role in protecting people's rights.

In the end of the day it will be up to the government to amend legislation/constitution. Sadly their sense of justice doesn't reach to minorities while they count votes. Strangely though that miority could be seen as significant if it bothered, and it doesn't .

The trouble with Case Law and Precedent is well that it's just that, past tense, and case law will rarely reflect how society has changed. But on my reading of the constitution it is possible to legislate for same sex marriage without changing the constitution, though no one is willing to and face the challenges that are inevitable. I'd guess eventually some EU citizen will succesfully argue that the bar be removed. Sad country where rights of minorities are only recognised when challnged outside the state.

Annasopra

The trouble with Case Law and Precedent is well that it's just that, past tense, and case law will rarely reflect how society has changed. But on my reading of the constitution it is possible to legislate for same sex marriage without changing the constitution, though no one is willing to and face the challenges that are inevitable. I'd guess eventually some EU citizen will succesfully argue that the bar be removed. Sad country where rights of minorities are only recognised when challnged outside the state

I actually agree with what you are saying hmm_messiah - there is no definition of marriage in the constitution - However Case Law has determined (even very recently in the case taken by Lydia Foy ) that marriage is between a man and a woman

damien

Hmm_Messiah wrote:

all true, but I was only commenting on the idea that the constitution is the block to same sex marriage, it isn't (necessarily)

It is the elephant in the room. It is the main block for someone that goes to court to get equal rights. However, a referendum can remove that block. Ignoring the elephant though is silly.

maybe a liberal Supreme Court is the way to go.

You'd need to wait a long long time for that. The last liberal times were the early 70s. It is like trying to buy a house by hoping you'll win the lotto. The chances of winning aren't zero, there is a chance but it is so remote that it is zero.

The Supreme court could decide that marriage has an undertanding equal to that of the RC church. It could equally recognise that this now fails the citizens of the state at this time . Understanding marriage in a broader context is possible, its for the Supreme Court to interpret.

The supreme court can refine murder to being a crime only if the person that was killed was 34 and was called John. That possibility exists as much as them ruling against tradition, case law and the intentions of the founders of the state and saying samesex couples can marry. Both are just as possible and absurd.

The constitution barriers to EU admission where easily enought legislated for and amendmnets made.

Surely referenda on EU issues is a bad example? Nice anyone?

Judges not only dispense justice but can and do define it. They also have a role in protecting people's rights.

They can define it. Probably the biggest definition was the ruling about contraceptives in the 70s using the right to privacy as justification which Norris tried and failed to use years later. They don't do this stuff every day though. They can protect rights that are there, where are the rights for gay marriage though?

Sadly their sense of justice doesn't reach to minorities while they count votes. Strangely though that miority could be seen as significant if it bothered, and it doesn't .

Totally agree. Plenty in Govt too who themselves are gay and never speak out.

But on my reading of the constitution it is possible to legislate for same sex marriage without changing the constitution

I diagree.

Sad country where rights of minorities are only recognised when challnged outside the state.

Totally agree.

Hmm_Messiah

. Understanding marriage in a broader context is possible, its for the Supreme Court to interpret.

The supreme court can refine murder to being a crime only if the person that was killed was 34 and was called John. That possibility exists as much as them ruling against tradition, case law and the intentions of the founders of the state and saying samesex couples can marry. Both are just as possible and absurd.

YOu stretched my point that "its for the Supreme Court to interpret" to an absurd degree, that doesn't make my point absurd. The intentions of the "founders" will become less significant. Setting age/nominal distinctions in murder is irrarational, broadening the definition of marriage , a pairbonding institution to include same sex pair bonding is a different thing entirely. It does not run against notion such as justice, equity, or even natural law.

Regarding EU related referenda I was referring to when Ireland first joined the EU, a whole generation ago, significant change was possible to the constitution when "necessary"

They can define it. Probably the biggest definition was the ruling about contraceptives in the 70s using the right to privacy as justification which Norris tried and failed to use years later. They don't do this stuff every day though. They can protect rights that are there, where are the rights for gay marriage though?

Accepting that the government doesn't put equal status for all citizens high on its agenda, I am then looking at it within a global context where to be seen as modern and progressive and advocating equality this state will follow what succeeds in other states. The "right to marriage" for a gay person is I accept to difficult to demostrate as an absolute, but it can be demonstrated. More likely a general right to equal status and treatment would be argued.

In reality though, personally, if I wanted to marry another man it wold not be for any of the benefits(??) from it as a lefgal institution, but nearer to the RC idea of proclaiming my lifelong love for a person before God(dess).

WHat I don't like about not being able to marry is the totally senseless arguments offered against it. Also while I am denied an option open to others I am then at the most base level not equal, and in the denial made less than another. Such separation of people is the the basis of discrimination that can grow to horrific levels.

The "world" will only be a just and safer place when every body is actually seen and treated as equal. And that might be only an aspiration in the realities of 2005, but its more to me. And indeed Irelands present position economically and globally would of been only an "aspiration" a few generations ago.

PS. It is however nice to be able to voice an opinion, argue a point, without seeing some compulsion to correct another or negate their view, or lower things to some personal slagging etc. Quite nice actually. Could get used to it.

Hunter S

Johnnymcg wrote:

I actually agree with what you are saying hmm_messiah - there is no definition of marriage in the constitution - However Case Law has determined (even very recently in the case taken by Lydia Foy ) that marriage is between a man and a woman

And its recently been legisated for the first time ever in the

CIVIL REGISTRATION ACT 2004

http://www.bailii.org/ie/legis/num_act/2004/3.html