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Civil Partnership Bill, Second Stage….Of Tatchell, MacLiammoir, Fathers and Left-Wing Extremist Feminism

January 28, 2010

Gilligan and Zappone

On Wednesday the second stage debate on the Civil Partnership Bill continued in the Dail (see an explanation of the Irish legislative process here). The Bill has now passed the second stage and has been referred to the Select Committee on Justice, Equality and Women’s Rights. An archive of the customary liveblog (and very entertaining it is too) is here.

References were made throughout the debate to two Bills which preceded the present government’s efforts; the Norris Civil Partnership Bill of 2004 and the Labour Party’s ill-fated Civil Unions Bill of 2006 (notable for its provision for children’s rights and for adoption).

Some highlights of the debate (I am confining myself to comments which introduced new points or made old points in an important way. We have blogged the second stage already here and here )included:

A Threat to Marriage?

Beverley Flynn (FF) emphasised the special protection afforded to marriage under the Constitution. This was a theme taken up by Brian Hayes (and by many his FG colleagues) who, unusually (perhaps almost uniquely) for this debate, actually discussed and demonstrated some understanding of the applicable law: One of the myths that has been circulated is that the Bill will downgrade the position of marriage. I wish to refute that assertion because I do not believe marriage will be downgraded at all. The clear protection afforded to marriage under Article 40 of the Constitution is absolute. That protection can be changed only on foot of a referendum and it cannot be altered by an Act of Parliament. That was made abundantly clear in the remarks of Ms Justice Dunne in the High Court in the case taken by Dr. Zappone and Dr. Gilligan, in which they attempted to have recognised a marriage of their union in Canada in Irish domestic law. It is worth putting on the record what Ms Justice Dunne said in that case, which, I understand, is still under appeal in the Supreme Court. She said: I think 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… The definition of marriage to date has always been understood as being opposite sex marriage. How then can it be argued that in the light of prevailing ideas and concepts that definition be changed to encompass same sex marriage? Having regard to the clear understanding of the meaning of marriage as set out in the numerous authorities opened to the Court from this jurisdiction and elsewhere, I do not see how marriage can be redefined by the Court to encompass same sex marriage… Marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex. In no way will the passage of this Bill downgrade or undermine marriage because absolute and clear protection is given in Articles 40 and 41 to marriage as an act between persons of opposite sex. I am not saying that in the future that could not change. However, the only way it could change is if there is a referendum. It is the people who will decide whether that definition of marriage as expressed in Bunreacht na hÉireann can change. I reject the notion that in some way the Bill downgrades marriage because absolute and fundamental constitutional protection is given to marriage in Articles 40 and 41.

It is interesting to note that the Minister for Justice in his response referred to two ways in which the Bill bears the marks of the government’s desire to protect the institution of marriage. First, he discussed the balance to be struck between a past spouse and a current co-habitant: I do not believe that establishing the duration of cohabitation under the provisions in the Bill will be a particularly difficult matter, although there are certain necessary variations in a case where either of the cohabitants has been married to another person during the period of cohabitation. This is consistent with the Attorney General’s advice that we must ensure that in such cases the spouse, being a party to a marriage, must take priority over the potential claims of any other cohabitant. Second he distinguished between the relief available on marriage breakdown and that sought to be made available when cohabiting relationships end: The Bill’s redress scheme is not designed to redistribute the property or finances of a couple who split up; it is designed to mitigate hardship where a relationship ends leaving one former cohabitant financially vulnerable. The Government has no proposals to widen the provisions for cohabitants in a way that would serve to undermine the institution of marriage.

Religion

The Minister for Justice has insisted that ‘one leaves one’s religion outside this Chamber‘. Nevertheless the religion issue – in the form of the ‘conscience’ amendment will not go away. Brian Hayes went on to discuss the possibility of a ‘conscience clause’ which would allow civil registrars to opt out of performing civil partnership ceremonies. He said that ‘If we accept that principle, we would be accepting some kind of sharia law. We would be accepting that religious views of the world would dominate over the laws of the Republic.’ (As an aside, the reference to ‘sharia law’ unproblematically and lazily equates adherence to (an unspecified version) of sharia with a threat to the secular state. Abdullahi Ahmed An-Na’im’s website and book , and this debate on his work at Immanent Frame are good places to start. The use of ‘sharia’ as a cipher for ‘what Irish law should not be’ is disappointing. The UK would be  a more useful comparator in this context – even this week the passage of the Equalities Bill has been troubled by claims to religious exemption from equality principles). More usefully, Mr. Hayes referred to In re Article 26 and the Employment Equality Bill in which Supreme Court found that “it was constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofar as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution”. Mr. Hayes distinguishes between a civil registration of marriage by an officer of the state  (which, he suggests, does not come within the scope of ‘free profession and practice of religion’ and accordingly cannot attract an exemption) and a religious marriage ceremony, which may fit that mould but falls entirely outside the scope of the Bill.

Deputy Leo Varadkar also raised the matter of the ‘conscience’ amendment. He reiterated the point made by his colleague Sean Barrett last week – that Fine Gael does not wish to see civil registrars jailed for refusing to perform a registration. However he was less sceptical that Mr. Barrett about the likelihood of refusals occurring:There are not many gay couples who will seek to impose themselves on a church or church hall without being welcomed. However, there are the Peter Tatchells of the world who may create cases and cause célèbre which should not be allowed. We must recognise and accept there is a religious conscience issue for the clergy and churches, temples, synagogues and so forth.’ Varadkar in his speech gave to the Irish people an image that we should cherish; that of the ‘female photographer, who is a left-wing extremist feminist, deciding she does not want to photograph a Muslim wedding because the women are covered at it’. He didn’t support a possible ‘florist’s amendment’, (Seymour Crawford mentioned solicitors in this context) which would allow sellers of goods and service-providers to discriminate against gay couples.

Damien English (FG) expressed the view that there ought to be some scope for a mild amendment in the interests of religious conscience: I can understand the position of somebody who might have very strong Catholic beliefs and who has a problem with this but, nonetheless, the onus is on public servants to carry out the laws of the State. That is the way is has to be and I do not think it can be amended, although perhaps the punishment can be. I have tried to check this matter, but I believe there is talk that if one does not carry out a duty one could face a prison sentence. Perhaps one could lose or be removed from one’s job, but is a prison sentence a bit too strong? In his response, the Minister for Justice explained that the proposed imprisonment ‘provisions extend to civil partnerships the exact penalties already provided for in the Civil Registration Act 2004 for the failure on the part of the registrar to perform statutory duties regarding the registration of marriages.’

Northern Irish couple Shannon Sickels and Grainne Close obtained the first civil partnership in the UK.

In his speech, the Minister for Justice rejected calls for ‘freedom of religion’ amendments to the Bill. He said ‘I agree with the view that there is no basis for providing a right to discriminate against a class of persons on the grounds of freedom of religion or conscience. It would also be against public policy to prevent State officials to choose not to perform certain of their official functions on the grounds that to do so would be contrary to their religious beliefs…. What would be the consequences if we were to allow officials to choose the parts of their job they would not do on the basis of their religious beliefs? In this regard, a registrar could refuse to register the marriage of a person who has been divorced… Other possible consequences could include a court clerk refusing to issue divorce orders; a science teacher refusing to teach about evolution; a fundamentalist Christian Garda refusing to arrest a husband who is breaching a safety order on the basis that he is entitled to chastise his wife; a judge refusing to register a power of attorney in favour of a person’s civil partner; a Muslim or Mormon accident and emergency doctor refusing to treat someone presenting with alcohol poisoning; an official of the Department of Social and Family Affairs refusing to pay carer’s allowance to a person’s civil partner; or a probate officer refusing to issue a grant of administration to a deceased person’s civil partner…As Deputies on both sides correctly pointed out, anyone is entitled to know that the services in respect of which provision is made in legislation will be provided without fear or favour. I cannot accept any amendments on that issue.

Children

There were several references to the position of children raised by gay couples. Leo Varadkar spoke about adoption, as did his colleague Simon Coveney, which is interesting because Fine Gael’s Civil Partnership policy document would reserve adoption rights to married couples. He does not want gay couples to have adoption rights – ‘Every child has the right to a mother and father and, as much as is possible, the State should vindicate that right. That is a much more important right than that of two men or women having a family. That is the principle that should underline our laws regarding children and adoption’- unless the child to be adopted is that of one of the partners from a previous heterosexual relationship. Michael D’Arcy rehashed the theme of children’s rights, but this time from a father’s rights perspective. He said ‘The subject of fathers’ rights is fraught with difficulty and should be dealt with. To do nothing is unfair to the fathers and children of the State. I will not pretend I know what needs to be done but I appeal to the Minister to ensure that the relevant Oireachtas committee considers the issue. Following a focused, considered discussion including input from family lawyers, fathers’ groups and other relevant groups, a position could be found to help those who are in legal limbo.’

The Minister for Justice in his speech signalled that the government will await the conclusion of the Law Reform Commission’s work on family relationships. He also argued that adequate general legislation was in place to serve the needs of children raised in non-marital families ‘It has been suggested that the Bill is silent in respect of children. As already stated, however, there is already a wide-ranging body of law relating to children’s rights in place and this will be available to the children of same-sex couples, regardless of whether the legislation is passed.’

Money

Maman Poulet suggested (tongue in cheek) that Leo Varadkar was driven by loneliness when he raised the issue of the tax code, which tends to treat a person living as part of a married couple – and later, perhaps, as a cohabitee or civil partner – more favourably than the same person would be treated if living alone (see a briefing on the relevant law and policy here).  He also raised the spectre of unscrupulous people abusing the institution of civil partnership for financial gain.

He further touched on the time condition for attracting default protection under the cohabitation provisions of the Bill (see Carol Coulter in the Irish Times on a similar point): Two years is a very short period. The relationships of many people who were going out together during the boom and who were encouraged to buy a house together have broken down. Those concerned are in a very difficult position, largely because the properties in which they invested are in negative equity. They are not in a position to sell because both parties would incur a serious loss from doing so. The Bill may change this dynamic, in a way that has not been considered fully, by giving cohabitation rights to one party or the other on foot of one party claiming those rights. This matter needs to be fleshed out in a little more detail. The Minister in his response simply said that ‘in formulating the provisions for cohabitants I was conscious of the necessity to protect the autonomy of those who choose not to marry and indeed those who in due course choose not to register as civil partners.’

Miscellaneous

Labour’s Joanna Tuffy addressed the cohabitation provisions of the Bill. She referenced research produced by Dr. Fergus Ryan of DIT, which is available here.

Fianna Fail’s Mary O’Rourke made a very nice speech about love and defended her party against allegations of backwoodsmanship, referring to its introduction of the Criminal Justice (Sexual Offences) Act 1993, which ‘decriminalised homosexuality’ (See here for a flavour of that debate back in 1993. The Act came in the wake of the ECHR case Norris v. Ireland)

Damien English also raised the issue of non-conjugal couples. Nobody outside Fine Gael seems to be biting on that one, but he promises that Fine Gael will table amendments to the Bill. The Minister for Justice in his speech said bluntlyGiving the courts power to make orders in respect of maintenance, pensions and property would constitute an unwarranted intrusion into normal societal and familial relationships. It would be inappropriate to require siblings, family members or those sharing houses to pay maintenance to each other simply because a relationship or friendship has broken down. In addition, giving the courts the power to make orders restricting or mandating the sale of property would again be an undue interference with constitutional property rights.’

The Minister for Justice has promised to introduce a domestic violence amendment to the Bill: The proposal will allow a person to apply for a safety order against a person with whom he or she had a child in common even if the couple concerned never lived together. The occasion of access to children can be difficult and safety issues often arise. While it is in the best interest of the child to ensure that he or she can develop a relationship with both of his or her parents, this should not be at the expense of the safety or well-being of either of the parents. That is detrimental to everyone, including the child who may be caught in the middle. Making safety orders available in law, if necessary, in such circumstances sets down a clear marker that violent and intimidating behaviour is not acceptable. I hope to introduce an amendment to ensure the Bill is not found wanting in this regard.

Labour’s Joan Burton gave some significant detail on the matter of homophobic bullying in her speech. You can view it here. She and her colleague Joe Costello improvised on Ruairi Quinn’s popular riff on the Republic with references to 1916.

Jan O’Sullivan mentioned Micheal Mac Liammoir.

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