Ireland’s Constitutional Convention Considers Same-Sex Marriage

—Eoin Carolan, University College Dublin

With some time to pass before the US Supreme Court delivers its keenly-watched ruling in U.S. v. Windsor, arguments about constitutional rights and same-sex marriage are due to receive another outing this weekend as part of Ireland’s ongoing Constitutional Convention.

The Convention was established in partial response to public demands for institutional reform to address the governmental failings so starkly illustrated by the economic collapse of 2008. Although markedly less ambitious than some of the reforms promised to the electorate in the 2011 election, the Convention does offer the opportunity for a novel experiment – by Irish standards – in direct citizen participation.

The Convention is comprised of 66 members of the public, 33 elected representatives and an independent chair. By comparison with other experiments in participatory democracy, the Irish Convention is a curious hybrid of ‘ordinary’ citizens and experienced political representatives. The involvement of professional politicians was subject to a considerable amount of criticism as defeating the point of the citizens assembly that one of the government parties had originally promised. Concerns were also expressed that the politicians experience would allow them to exert an influence on discussions which outweighed their numbers (a fear which initially seemed borne out by their dominance of the contributions from the floor during the opening sessions).

As against that, others have pointed out that the involvement of politicians in the deliberations may encourage a greater degree of commitment by the political parties to whatever proposals ultimately emerge, thereby avoiding the lack of ‘buy-in’ that has been seen with citizens assemblies in some other jurisdictions.

The issues which the Convention will consider are as follows:

• Reduction of the Presidential term of office to five years and the alignment with local and European elections;
• Reduction of the voting age to 17;
• Review of the Dáil electoral system;
• Irish citizens’ right to vote at Irish Embassies in Presidential elections;
• Provisions for same-sex marriage;
• Amendment to the clause on the role of women in the home and encouraging greater participation of women in public life;
• Increasing the participation of women in politics; and
• Removal of the offence of Blasphemy from the Constitution.

The Convention is also entitled to make recommendations on other issues if it has time to do so within its 12-month lifespan. The government has committed to respond to the Convention’s recommendations within four months but is not necessarily obliged to refer their proposals to the People by way of a referendum.

The Convention has so far considered the first two issues of the Presidential term and the reduction of the voting age. Somewhat unsurprisingly, these have failed to attract much attention or interest from the public at large. However, these relatively uncontroversial topics are likely to have provided a valuable dry run for the members’ examination of more high-profile issues – beginning, this weekend, with arguably the most high profile question of same sex marriage. In contrast to its previous deliberations, the Convention has received over a thousand submissions from the public on this issue, reflecting the substantial levels of public interest in this weekend’s event.

At present, the relevant provisions of the Constitution of Ireland state that:

Article 41

1.1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

1.2 The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

….

3.1 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 Constitution does not define either marriage or the family.  The definition of ‘marriage’ was addressed in part by section 2. 2 of the Civil Registration Act 2004 which provides that “there is an impediment to marriage if … both parties are of the same sex”. The High Court placed some reliance on this provision as “an indication of the prevailing idea and concept in relation to what marriage is and how it should be defined” in dismissing a 2006 challenge to the State’s refusal to recognise a same-sex couple’s Canadian marriage.

The ‘Family’, meanwhile, has been interpreted by the Supreme Court to refer to the married family alone since the Supreme Court decision in State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 that an unmarried father has no inherent right to be notified of the adoption of his child.

As Ireland’s Constitution may be amended by a simple majority vote in a referendum, these provisions may have limited relevance to this weekend’s deliberations. One issue which may arise is whether any change in the definition of marriage should also have implications for the meaning of ‘family’ under Article 41.

In general, however, this weekend’s deliberations are likely to focus on the social and political arguments for and against same-sex marriage. In this regard, it will be interesting to see whether the Convention’s eventual recommendation mirrors more recent opinion polls suggesting a substantial majority in favour of same-sex marriage in Ireland. Regardless of what occurs over the course of this weekend’s discussions, it seems likely that same-sex marriage will be recognised in Ireland sooner rather than later. What may, perhaps, be most interesting to see is the extent to which the fact that the issue will be debated discussed at length and in public by a mixture of politicians and ordinary citizens may influence the tone of the subsequent debate. Will this very public process of deliberation encourage political and popular ‘buy-in’ to whatever outcome emerges? Will the discussions change attitudes or simply harden them? And will the outcome – if it does match opinion polls – provide political cover for the more conservative members of Ireland’s coalition government to agree to bring a referendum forward without having to present or support it as their own proposal? Whatever happens this weekend is likely – given the level of public attention – to have significant ramifications not only for same-sex marriage in Ireland but also for the status, reputation and future of the Convention itself.

The Constitutional Convention will be streamed live here during the weekend.

Suggested Citation: Eoin Carolan, Ireland’s Constitutional Convention Considers Same-Sex Marriage, Int’l J. Const. L. Blog, Apr. 9, 2013, available at: http://www.iconnectblog.com/2013/04/irelands-constitutional-convention-considers-same-sex-marriage-2.