Sunday, January 29, 2006

Thou Shalt Not Marry

3. 1o 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.

2o No law shall be enacted providing for the grant of a dissolution of marriage

2º A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that—

i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

ii. there is no reasonable prospect of a reconciliation between the spouses,

iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and

iv. any further conditions prescribed by law are complied with.[87]


Above is printed Article 41 of the Irish constitution. The original provision outlawing divorce is shown alongside the amendment which made provisions for it following the referendum in 1995. In light of the Oireachtas report published last Wednesday, which concluded that no adjustments need be made to the definition of the family contained within the constitution, thus ruling out the possibility of same-sex marriage, I ask: if the concept of marriage can be altered over time to include the possibility of divorce, why similarly may not the concept of marriage be amended to include the possiblity of same-sex unions(by union here I mean marriage)?

Mentalmeanderings and Sicilian Notes have been at loggerheads over the last few days on issues arising from the report (Click here to get a helpful click-through guide to the tete-a-tete from Disillusioned Lefty, who has yet to offer his two cents on the subject). DeLondras proudly wears her sexuality on her sleeve. I'm not sure what Richard Waghorne's orientation is. He takes umbrage at DeLondras' lecturing him on growing up gay so I'm assuming (maybe wrongly) that he's gay or bi or transgender or questioning. Alas, neither of them really gets to grips with the specious reasoning of the report in upholding the orthodox and discriminatory defintion of marriage as that between a male and female.

Reading through the Oireachtas report, I come to two conclusions: firstly, the main problem besetting the aspirations of same-sex marriage advocates is the peculiar precedence awarded by the 1937 constitution to the institution of the family, to the extent that it does not deal with marriage outside of or separate from the unit; secondly, the term "family" as we conceive it today is completely divorced from the term as it was first conceived in the constitution, and in so far as it relates to the family, there is a high incidence of repeated tinkering with the constitution over the years by legislators to primp and pramp it according to the exigencies of the day.

The rights of a couple to seek to consolidate their relationship and enjoy the protections and privileges offered by the state through the institution of marriage are not dealt with outside the idea of family. It is clear that the original constitution could conceive neither of children without a married couple nor of a married couple without children. The report devotes precious little time to dealing with the terrible consequences of this gross selectivism, which saw thousands of single mothers cast into life in laundry homes and their "illegitimate" offspring sentenced to spend their childhoods enduring the hardships and abuses of the Catholic-run orphanages.

The report does devote a lot of time to looking at the problems that the constitution's "family" fetish threw up over the years. It states that articles 41 and 42 were drawn up against a world background of spreading communism and Russian totalitarianism, which had tried to outlaw the family. Thus the constitution sought to protect the family from interference by the state. The problem was that it didn't deal individually with the two components of family: children and parents.

Over the years, the family concept enshrined in those articles has changed radically. The first change came about as a result of the Commission on Emigration's 1954 report in which it recommended the removal of the marriage bar for civil servants and teachers and in banks, on the grounds that it would help raise the marriage rate(p.41). As a result, labour participation by married women increased while the marital fertility rate declined. Starting in 1958 and culminating in Ireland's entry into the EEC in 1973 the prohibitions placed on married women remaining in the workforce were removed. The role of the mother as stay-at-home care-giver in the constitution's concept of family was effectively done away with. The most recent example of a legislator introducing incentives for married women to join the workforce is probably Charlie McCreevey's invidualisation of the tax codes in Budget 2000(p.42).

The other major legislative blow to the 1937 concept of the family was the 1995 divorce amendment. What was previously dissoluble only by God was now dissoluble in a civil court and the guarantee was in the constitution(pp.38-39).

In light of the divorce amendment, the only difference between married couples and cohabiting ones is the privileges married couples enjoy. The report concludes in favour of introducing civil-partnership rights which extend the privileges of marriage to cohabiting hetero- and homosexual couples, while it advocates that the constitutional protections given to the "family" unit not be extended through a broadening of that term.

In my view, in light of the earlier accommodation of the constitutional concept of family to the contemporary exigencies outlined above, the drawing of a line at this point rests on shaky ground. It is clear that the nuclear family conceived in the 1937 constitution has been done away with over the years by acts and amendments. Why the oireachtas committee insists on dealing with the two components of children and parents together,is anyone's guess. If marriage is to be denied to same-sex couples on the grounds that they can't procreate, then why should childless heterosexual couples be allowed to enjoy its special protections? Is the institution of marriage only socially useful if it produces offsping?

If we can separate the idea of marriage for one moment from the idea of procreation, what justification is there for conferring partnership rights while denying the protections of marriage? Only that the union of man and woman is superior to that of man and man or woman and woman. In my eyes, that is discrimination and arguments for it can only be found in religion and bigotry. Just as in the past, the idea of a catholic marrying a protestant or a black man marrying a white girl scandalized the self-righteous and bigoted, so similarly does the idea of same-sex unions today. In the past southern US states argued that in providing separate toilets and train cars for black people, they weren't discriminating as long as there was no qualatitive difference in the services offered to both whites and blacks. Today those who would award gays partnership rights but deny them marriage make the same case.

The Irish constitution needs to make provisions for couples who seek to formalise their emotional bond, independently of whether or not it is their intention to have children. Similarly it must make provisions for those couples who embark on the journey of raising a family. The committee is right in saying that family is a bedrock of our society. It is wrong to seek to retain a definition of what constitutes that family that is so narrow that only a privileged number can enjoy the constitutional protections afforded.

Richard Waghorne essentially wishes to avoid a debate about gay marriage in his taking to task of Fiona DeLondras but in spite of himself he offers up a few explanations as to where he stands. In his ideal world, the govt serves to maximise freedom. He would thus do away with civil marriage, reducing it to contracts and leaving its more ceremonious and symbolic aspects to religions. Govts today, however, are involved in far more than maximising freedom and one of their roles is protecting equality. In denying marriage to gay couples, a govt is simply saying that homosexuals are not equal to heterosexuals. It will allow gay couples through civil unions to take responsibility for each other but in the eyes of the law they will not be equal to their heterosexual counterparts. Simply put: discrimination. The govt is not required, as Fiona DeLondras argues, to celebrate gay unions or to promote them in any way. But it is obliged to ensure that all its citizens are treated equally and have the same rights.

I will not deal here with the arguments put forward by various religious-motivated groups as I believe that people of my generation are more than able to weigh their merits. I can understand perfectly why people of older generations might feel in their bones that a gay union is inherently wrong or unequal. Most of my generation, and the younger generations coming up behind us,do not live with that bone-deep sense of the unseemliness of gay relationships. The constitution, if it does not change soon, will be giving a clear message to the younger generations that gay relationships are not on an equal footing with straight ones. In short, it will be promoting discrimination.

Gay Catholic Caucus' submission to the committee included this list of differences between gay couples and married heterosexual ones(p. 77/78):

• They pay higher income tax.
• They pay higher capital gains tax.
• They pay higher stamp duty.
• They pay higher inheritance and gift tax if they make any
gifts or bequests to each other.
• Their non-Irish spouse cannot easily work and live in
Ireland.
• They may face discrimination in pension benefits.
• In cases of domestic violence, they are less protected by
the law because they cannot claim barring orders under
the Domestic Violence Act 1996.
• They may not be recognised as next of kin if their
partner is hospitalised.
• The partner of a deceased gay person will have no
entitlement equivalent to that of a spouse, to a share of
the estate of the deceased.
• In case of pregnancy, the partner of the pregnant person
will not be entitled to parental leave.
• They can adopt but only as single people.
• The child of a gay couple is disadvantaged because he or
she cannot legally be recognised as a child of both parents.
The disadvantages relate to gifts, inheritance and custody.

To read somebody dealing far more eloquently with the substantive arguments than I've done, check out this letter by Anglo-American gay conservative, Andrew Sullivan, published in Slate in 1997.

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