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Ireland’s Constitutional Convention Considers Same-Sex Marriage: Part II

Eoin Carolan, University College Dublin

Ireland’s Constitutional Convention has voted overwhelmingly in favour of a proposal to amend the Irish Constitution to allow for civil marriage for same-sex couples. 79 Convention members favoured the proposal with 19 against and 1 expressing no opinion.

There was also a similarly large majority in favour of a directive amendment requiring the State to provide for same-sex marriage with 78 members opting for this, as against 17 members who preferred a permissive amendment and 1 who expressed no opinion.

The background to the Convention and to its consideration of same-sex marriage under the Irish Constitution was discussed in a previous post, available here.

Although not unexpected, the large vote in favour of the proposed amendment nonetheless marks another step towards the seemingly inevitable recognition of same-sex marriage in Ireland.  The next stage will be for the Convention to provide its report, after which the Government will have four months to respond. If the Government accepts the recommendation, they will also at that point indicate the timeframe envisaged for the holding of a referendum on the issue.

Here, the internal politics of Ireland’s coalition government may have some influence. The Tánaiste (Deputy Prime Minister) and leader of the smaller and more socially-liberal Labour Party has already stated his support for same-sex marriage. The Taoiseach (Prime Minister) has consistently refused to give his own personal opinion on the issue but it is likely that his party includes some with more conservative views.

This suggests that the choreography of any constitutional amendment may be interesting for several reasons.

Aside from the basic question of whether to provide for same-sex marriage in the Constitution, various issues are likely arise in relation to the adoption, guardianship and parentage of children. As discussed in the previous post, Ireland’s Constitution confers special protection in this regard on married heterosexual parents. This means that it is likely that there will be debate about whether a referendum on same-sex marriage should deal with the constitutional position of the children and families of same-sex couples but should also address the position of unmarried heterosexual families.

This may be a more complex and contentious issue. Unfortunately, the Convention failed to consider this in any detail, confining itself to a vote on the bland and ambiguous recommendation that the State should enact laws incorporating changed arrangements in regard to the parentage, guardianship and the upbringing of children. This provides little guidance, if any, on what the content of those changed laws might be. While this produced the highest majority vote of the day (81%), the fact that at least some members who opposed same sex marriage supported this recommendation itself illustrates how the Convention effectively dodged this issue.

A separate point of note, which was anticipated in the previous post, was what its consideration of same-sex marriage might mean for the status and future of the Convention itself. This was the first major matter of public interest which the Convention has considered. While the interest in the Convention’s deliberations was certainly higher for this issue (as reflected in the large number of submissions received), the media coverage of the outcome was greater than previously but still less than might have been expected. It certainly could not be compared, for example, with the media attention which the US Supreme Court’s consideration of this issue has attracted.

This may have implications for both the future of the Convention and of the political treatment of its same-sex marriage proposal. The remaining issues which the Convention is scheduled to consider include some significant matters like a review of Ireland’s electoral system. Same sex marriage was always, however, the topic which was most likely to attract the public’s attention and allow the Convention to break out of its previous position as a niche interest for members, political and constitutional junkies, and professional campaigners. It is questionable whether that actually occurred.

Furthermore, recent comments by the Chair that the Convention may use its freedom to address other issues to focus on matters such the environment or the place of God in the Constitution suggest that this pattern of asymmetric interest may continue. While these issues may be of interest to what the Chair obliquely described as “a number of the general interest groups who are involved in this process”, (suggesting, perhaps, that some of the ‘civil society’ groups who originally complained about not being given a special status in the process have obtained more influence as it has progressed) these topics may not command as much interest amongst the general public. This may further limit the Convention’s effective audience.

This may have consequences for how its recommendations are handled by government. On the same-sex marriage issue, it may give more conservative-leaning politicians (or politicians concerned about conservative-leaning voters) less cover to initiate a referendum on the issue than was hoped.

More generally, it reduces the prospect of the government coming under serious political pressure to allow a vote on any recommendations which the government itself is not in favour of. This may be most relevant to the question of electoral reform where there is an obvious divergence between (a perhaps waning) public interest in reform of a political system that failed so spectacularly in the years leading up to 2008 and the self-interest of the politicians who are chosen by that system. If that is the case, the Convention may end up not as the innovative experiment in deliberative democracy that some may have hoped but as the final diversionary set piece in the political establishment’s gentle deflation and eventual euthanisation of demands for substantial reform.

Suggested Citation: Eoin Carolan, Ireland’s Constitutional Convention Considers Same-Sex Marriage: Part II, Int’l J. Const. L. Blog, April 25, 2013, available at: http://www.iconnectblog.com/2013/04/irelands-constitutional-convention-considers-same-sex-marriage-part-ii

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Published on April 25, 2013
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