What now for gay marriage

a-ha

Actually courts can hear that evidence by way of expert testimony. The appeal court in theory does not generally interfere with the trial court's finding of fact or on evidence (unleas unreasonable) and instead confines itself to ruling on the law. Perry v Swarzwnegger is an excellent example it how this can work in practice. The judge legal conclusions are based on his findings of fact, these will be upheld or rejection appeal.

The Zappone HC decision is quite a disappointment. Effectively the plaintiffs needed more expert evidence and to totally trash prof Casey on cross examination for misrepresenting others' research.

Basically they didn't get the findings of fact they needed and Justice Dunne was allowed to play it safe with Hyde and Hyde and also bizarrely referring to legislative intent in deciding whether same sex couples have the right to marry. to which the answer should be...what has that got to do with their constitutional rights!!

Next time if there is one we need experts from all the world's leading universities, ie Harvard, Yale, Oxford Cambridge and we need to blow the other sides' exper out of the water.

The trial should be live blogged with daily press releases quoting transcripts.

We need a trial like the scopes trial to change public opinion.

But you are right that Labour is good for us (they are in favour of equality in civil marriage). Shatter knows all the legislative gaps that impinge upon non-marital and step parent families). An Oireachtas committeeor law reform commission report would be a start. Perhaps this ref (unlikely to pass) on oir inquiries could be a way?

We need to be out talking to our TDs with our mums, dads, friends and partners regularly.

a-ha

To the poster who thinks it's all about adoption.

1. Again, there is no right to adopt.
2. There is no step parent adoption in Ireland, CPs will still not be able to become joint legal parent/guardians of their children.
3. While I would like to get married and will do so someday if I was trying to establish family ties to my wife's biological children I would first need Ireland to legislate FOR GUARDIANSHIP and STEP PARENT ADOPTION. Marriage doesn't provide this but heterosexual couples using IVF (which is totally unregulated in Ireland:-I) are presumed to be parents (ie, presumption of husband's paternity in respect of children born during the marriage. UNTIL the contrary is PROVED).

If I wanted us to adopt my wife's child as a couple I couldn't do so under existing law.

Marriage doesn't really help because joint adoption would require us to first extinguish her parental rights. It would be a crazy hoop to go though and take years while still being woefully uncertain, ie the Adoption Board would have to assess us and make a decision in our favour. Not an outcome one can guarantee.

Note step parents are in a similar legal position but unlike the children of civil partners step children have a right to maintenance and support.

a-ha

walrusgumble wrote: »

International Scientific consensus is not how our laws are based (in court). Similar arguments were used in the High Court case of Zapponne, to justify how attitudes to what marriage meant had changed. It was shown that laws around the world and even ECtHR said no.

What happens where the other biological but non married parent is around, and the other parent,who is gay dies? Your saying that the non biological gay partner's rights should take priority over the rights of the surviving biological parent?

The stuff has to be argued in Westminster House. With Alan Shatter in as Justice Minister, now is the best time to try

Your probably right though, the political process is thus far more receptive than the courts. It's pretty frustrating trying to make the argument when you know they have interpreted themselves into a corner re Article 41.

Not many Irish people realize that a huge number of Irish families (cohabiting couples with children, single mothers and their children etc) are not constitutionally protected as families.

Article 41 is a disaster as it has failed to protect the families who were in direst need of protection. 20th century Ireland is littered with examples of how vulnerable non-marital families were (the treatment of unmarried mothers and their children, huge mortality rates for 'illegitimate' children - a four times higher risk of death in their first year, children being incarcerated in industrial schools. Despite this grim history our courts have stuck resolutely to the most conservative interpretation of Article 41 possible. There are any number of arguments that could be made to the effect that the importance placed on marriage in the cons. does not mean that other families do not enjoy cons. protection (even if unenumerated).

walrusgumble

a-ha wrote: »

Actually courts can hear that evidence by way of expert testimony. The appeal court in theory does not generally interfere with the trial court's finding of fact or on evidence (unleas unreasonable) and instead confines itself to ruling on the law. Perry v Swarzwnegger is an excellent example it how this can work in practice. The judge legal conclusions are based on his findings of fact, these will be upheld or rejection appeal.

The Zappone HC decision is quite a disappointment. Effectively the plaintiffs needed more expert evidence and to totally trash prof Casey on cross examination for misrepresenting others' research.

Basically they didn't get the findings of fact they needed and Justice Dunne was allowed to play it safe with Hyde and Hyde and also bizarrely referring to legislative intent in deciding whether same sex couples have the right to marry. to which the answer should be...what has that got to do with their constitutional rights!!

Next time if there is one we need experts from all the world's leading universities, ie Harvard, Yale, Oxford Cambridge and we need to blow the other sides' exper out of the water.

The trial should be live blogged with daily press releases quoting transcripts.

We need a trial like the scopes trial to change public opinion.

But you are right that Labour is good for us (they are in favour of equality in civil marriage). Shatter knows all the legislative gaps that impinge upon non-marital and step parent families). An Oireachtas committeeor law reform commission report would be a start. Perhaps this ref (unlikely to pass) on oir inquiries could be a way?

We need to be out talking to our TDs with our mums, dads, friends and partners regularly.

Sweet lord,

Yes, they can hear it, but it does not mean they are going to accept it. They will ,as it has been clear in the High Court case of Zapponne, said, it ain't a matter for the Courts.

After reading your comment on Zapponne, how about actually dealing with what Dunne J had to say, as oppose to what you would have liked them to say. Deal with that, first. Dunne looked at what public opinion thought. Yes, she played it say in some respect. But she looked at other countries and this country to see what legislation had said.

Not one Yale expert is going to cut it. An Irish Judge will not rule on this, I gravely doubt it, and although I would support it, I still think that it is entirely inappropriate to do so. A Referendum is how this matter will settle. Try and get those people to convince the opponents of such change of laws.

anymore

nuxlrzqspd76ca wrote: »

How can you say "the people will and to a certain extent have". That doesnt make sense - either gay marriage is granted or it is not?????
Your assertion that the core are "small minded" is insulting and typical of the continued failure of the LGBT community engaging in persecution complex rather than real politics.
My own view is that the LGBT community will continue articulating attitudes like you posted and will get nowhere.

You have identified a weakness with the LGBT arguement which may irriate more pople than they think. It is the essence of democracy that people be free to make thier own decisions. This type of denigrating those who disagree with them suggests this group suffers from thier own ' small mindedness'. Quite often it results in those who are and have been suportive of gay issues having to self-censor llest they ' offend' some gay people. That is not equality.

walrusgumble

a-ha wrote: »

Your probably right though, the political process is thus far more receptive than the courts. It's pretty frustrating trying to make the argument when you know they have interpreted themselves into a corner re Article 41.

Not many Irish people realize that a huge number of Irish families (cohabiting couples with children, single mothers and their children etc) are not constitutionally protected as families.

Article 41 is a disaster as it has failed to protect the families who were in direst need of protection. 20th century Ireland is littered with examples of how vulnerable non-marital families were (the treatment of unmarried mothers and their children, huge mortality rates for 'illegitimate' children - a four times higher risk of death in their first year, children being incarcerated in industrial schools. Despite this grim history our courts have stuck resolutely to the most conservative interpretation of Article 41 possible. There are any number of arguments that could be made to the effect that the importance placed on marriage in the cons. does not mean that other families do not enjoy cons. protection (even if unenumerated).

First of all , I thank you for being so kind as not to comment on my accidental but cringing cock up of "westminster House" as oppose to "Leinster House".

Do you have evidence that "Not many Irish people realize that a huge number of Irish families (cohabiting couples with children, single mothers and their children etc) are not constitutionally protected as families. " ?

Children, regardless of their parents martial status have Constitutional rights. Single mothers may not have "family" rights under Article 41, but they are present in Article 40.3 - I refer to you the cases of G v An Bord Uchtala 1980.


To say that Article 41 is a "disaster" suggests a lack of understanding what Article 41 actually does.

It seeks to protect the family from outside interference from third parties, like the State. This has been seen, regarding children, not to be too constructive, due to the COURTS' interpretation of that and Article 42.5

Article 41 has always being about the married family. So non married were never considered. Nothing was every done about this. If you look at the reports on Article 41, people hold that fact very jealously. There is no guarantee that the distinction would end tomorrow if put to people.

Your examples are hysterical, you are suggesting that a majority of families based on marriage have such problems.

In the 21st Century, many would argue, social welfare wise, a single mother, with no real drive, has not done too bad out of things. (Look at Mhic Mathunghna 1995)

I don't see how your arguments on Article 41, in anyway helps the case for homosexuals or suggest that all of those bad things would have ceased. Depending on what is said, I suppose you would fairly say that its purpose is to point out the hypocrisy. That's fine, but those examples have not occurred in a majority of cases. I can assure you, I am only too aware of the attitude of women pregnant before marriage - shot gun weddings. The attitude was around still, in the 1980's.

As for Unenumerated Rights, well, they might be tough, the Courts nowadays seem, for now, to have shut up shop on those. You have to explain to us the legal basis first. Zapponne tried that,

a-ha

walrusgumble wrote: »

a-ha wrote: »

Your probably right though, the political process is thus far more receptive than the courts. It's pretty frustrating trying to make the argument when you know they have interpreted themselves into a corner re Article 41.

Not many Irish people realize that a huge number of Irish families (cohabiting couples with children, single mothers and their children etc) are not constitutionally protected as families.

Article 41 is a disaster as it has failed to protect the families who were in direst need of protection. 20th century Ireland is littered with examples of how vulnerable non-marital families were (the treatment of unmarried mothers and their children, huge mortality rates for 'illegitimate' children - a four times higher risk of death in their first year, children being incarcerated in industrial schools. Despite this grim history our courts have stuck resolutely to the most conservative interpretation of Article 41 possible. There are any number of arguments that could be made to the effect that the importance placed on marriage in the cons. does not mean that other families do not enjoy cons. protection (even if unenumerated).

First of all , I thank you for being so kind as not to comment on my accidental but cringing cock up of "westminster House" as oppose to "Leinster House".

Do you have evidence that "Not many Irish people realize that a huge number of Irish families (cohabiting couples with children, single mothers and their children etc) are not constitutionally protected as families. " ?

Children, regardless of their parents martial status have Constitutional rights. Single mothers may not have "family" rights under Article 41, but they are present in Article 40.3 - I refer to you the cases of G v An Bord Uchtala 1980.


To say that Article 41 is a "disaster" suggests a lack of understanding what Article 41 actually does.

It seeks to protect the family from outside interference from third parties, like the State. This has been seen, regarding children, not to be too constructive, due to the COURTS' interpretation of that and Article 42.5

Article 41 has always being about the married family. So non married were never considered. Nothing was every done about this. If you look at the reports on Article 41, people hold that fact very jealously. There is no guarantee that the distinction would end tomorrow if put to people.

Your examples are hysterical, you are suggesting that a majority of families based on marriage have such problems.

In the 21st Century, many would argue, social welfare wise, a single mother, with no real drive, has not done too bad out of things. (Look at Mhic Mathunghna 1995)

I don't see how your arguments on Article 41, in anyway helps the case for homosexuals or suggest that all of those bad things would have ceased. Depending on what is said, I suppose you would fairly say that its purpose is to point out the hypocrisy. That's fine, but those examples have not occurred in a majority of cases. I can assure you, I am only too aware of the attitude of women pregnant before marriage - shot gun weddings. The attitude was around still, in the 1980's.

As for Unenumerated Rights, well, they might be tough, the Courts nowadays seem, for now, to have shut up shop on those. You have to explain to us the legal basis first. Zapponne tried that,

Please read Ferriter's Occasions of Sin or even the child abuse commission report.

We didn't protect children equally and still don't because thanks to article 41 only one family type was deemed to merit protection. The courts also failed to protect these children and their families. Art 41 has been interpreted too narrowly.

Those who argue that protecting marriage depends on treating non marital families badly are really missing the point.

Nor is marriage is not strengthened by the exclusion of people who want to marry.

The conservative interpretation of article 41 by the courts has stifled legislative initiative, leaving vulnerable groups more so.

Legislators cite 41 and potential unconstitutionality and then fail to take any action.

Dunne interpreted this lack of action as evidence of legislative intent which is inappropriate in a separation of powers sense given that she was asked to consider their failure to vindicate a constitutional right. She used this failure to interpret that right.

If gays and lesbians have a personal right to marry then why in s constitutional republic should you think it preferable that it be determined by majority vote? This is known as the tyranny of the majority, please read up on it.

Note I'm asking should they (the normative question) not can they.
Is it not the role of constitutional courts to protect and uphold fundamental rights?

The high court judgement was poorly argued and her deference to legislative intent both tautological and inappropriate. We haven't developed the standards of review needed to enable our courts to see beyond their personal preconceptions. Legislative intent should not be applied to the question of whether a minority have a constitutional right or not.

Minorities by the very nature have a limited capacity to have their interests reflected in legislative action. We have a constitution for a reason.

It protects the rights of individuals from state interference. This is one of the most important functions of the courts under the separation of powers. Dunne seems to have thought herself limited to simply rubber stamping the legislative branch.

There's a lot to be said for the US strict scrutiny and rational basis not least the fact that argumentation is then more strongly based on evidence.

Here's an example:

Is there a rational basis for the exclusion of same sex couples from civil marriage?

Would your answer differ if sexual orientation was a suspect classification?


Her argument rested on a few logical flaws. I've mentioned one (legislative intent determines constitutional rights). What are the others? I can think of a few...

walrusgumble

As, the courts are doing everything to refuse enumerated rights, especially where there have no recognition via other rights. The court was asked to legislate and take the place of legislature. You are also.resting far too much on.your larrells regarding public agreement on gay marriage. There little said regarding article 41 that assists the case. This should be.adequately addressed by the recent amendment to the 2008 amendment Bill that came out in 2011. Your also fidgeting that laws were there but people stuck there heads.in the sand and that was not the church

a-ha

walrusgumble wrote: »

As, the courts are doing everything to refuse enumerated rights, especially where there have no recognition via other rights. The court was asked to legislate and take the place of legislature. You are also.resting far too much on.your larrells regarding public agreement on gay marriage. There little said regarding article 41 that assists the case. This should be.adequately addressed by the recent amendment to the 2008 amendment Bill that came out in 2011. Your also fidgeting that laws were there but people stuck there heads.in the sand and that was not the church

I wrote a good reply which was lost to my poor connection. I'll post it again when no lt typing on my phone (exhausting).

Just look at Lord Penzance in 1866 and tell me how this paragraph might be written today:

"The position or status of “husband” and “wife” is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties...What, then, is the nature of this institution as understood in Christendom? Its incidents vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."

It is clear that Penzance was describing the present tense understanding of marriage in 1866 and that this is all he was attempting to do.

Is there nullity, judicial separation and divorce in Christendom?

Is there same sex marriage?

Is this definition accurate for christendom today?

Has Hyde v Hyde been rejected in other common law countries?

Did the idea of same sex marriage even occur to Penzance or is his judgement on polygamy obiter the question of whether same sex couples can marry?

Are cases which pre date the decriminalization good authorities today? Can they be applied to the constitutionality of same sex marriage?

a-ha

The countries which allow same-sex couples to enter into civil marriages are: Argentina, Belgium, Canada, Netherlands, Iceland, Norway, Portugal, South Africa, Spain, Sweden. Same-sex marriages are also recognized in Israel, Curaco, Sint Maarten, Aruba and Mexico (although they can only be performed in Mexico city). Same-sex marriages performed pre-proposition 8 are valid and recognized in California (per a decision of the CA Supreme Court). Modern recognition of same-sex marriages began in 2001 with legislation in the Netherlands although same-sex marriages were performed even in Roman times.
 
Same-sex marriages are now performed in 6 US states including most recently New York and are recognized by two Native American tribal jurisdictions. In addition, Denmark is set to recognize same-sex marriage next year (2012), Scotland in 2014 and the United Kingdom in 2015.

The countries recognizing civil partnerships or a similarly formal legal status are: Austria, Ireland, Andorra, Brazil, Columbia, Czech Republic, Denmark, Ecuador, Finland, France, Greenland, Hungary, Isle of Man, United Kingdom, Liechtenstein, Luxembourg, New Zealand, Slovenia, Switzerland, Uruguay, Germany, New Caledonia, Wallis and Futuna. The first modern formal same-sex partnership regime commenced in Denmark in 1989.

a-ha

You see the exact same reasoning that was employed in Hyde v Hyde can be used to argue for same sex marriage today.