Martin Mansergh (Tipperary South, Fianna Fail)

This is landmark legislation, which I welcome. The Minister for Justice, Equality and Law Reform is justified in claiming it as an example of civic republicanism at work. I believe he can say this with more conviction than might have been possible in the past. As in 1993, when homosexuality was decriminalised, he has decided to go the whole way, with the obvious caveat of the status of marriage. Other than that, it is a thoroughgoing piece of legislation.

One could also say that, as in 1993, the legislation is a demonstration of the benefits of coalition Government. Undoubtedly, the decriminalisation of homosexuality was pushed up the agenda by the formation of a coalition with the Labour Party. Without detracting from the initiative and policy of my own party and Minister, the Green Party is entitled to a sense of co-ownership of this legislation. My belief is that this legislation provides the substance of equality, though the status of marriage is missing. There are two groups of critics. On one hand are those from the gay and lesbian community who complain that it does not include conferral of the status of marriage. On the other side critics say the legislation, to all intents and purposes and in substance, amounts to marriage and they oppose it for that reason.

There is common ground in our understanding of the Constitution that a constitutional referendum would be required to introduce the status of same-sex marriage. It is better to take this step now. In the successful divorce legislation of the mid-1990s, rather than the unsuccessful legislation in 1986, all the ground work had been done in the Judicial Separation and Family Law Reform Bill introduced by Deputy Shatter in the late 1980s, in which details of substance were largely dealt with. Divorce became a form of final marital separation, leaving only limited modalities to be addressed. If a decision is made by the people at some point in the future the vast majority of practical questions will have been dealt with in this legislation, such as in the areas of taxation and inheritance.

The argument was made that divorce would alter the nature of marriage as a life-long commitment. The people listened to that argument but decided, albeit by a very narrow majority, to override it. In a registry office in England recently I heard it stated that marriage under the laws of that state was between one man and one woman. This dealt not only with same-sex marriage but the issue of polygamy, which is permitted by certain religions.

A view which has some backing from the wisdom of ages is the one that marriage as we understand it today is probably the best framework for procreating and rearing children. A same-sex marriage or partnership cannot procreate children. I am aware that children of heterosexual marriages may endure appalling circumstances and that children of same-sex partnerships may have a near-ideal upbringing but I am talking about the average situation. It will ultimately be for the people to decide if the differences which exist are vital and overriding factors or whether the status of marriage should be conferred on same-sex couples. Under the 1938 Constitution such fundamental socio-moral issues have generally been reserved to the direct judgment of the people as a matter of direct democracy, as opposed to the representative democracy which deals with most other questions.

Deputy Shatter dealt with the issue of children where there is a separation involving a same-sex couple, which I am sure will be teased out on Committee Stage. In such a situation the primary responsibility of the biological parent is clear and one can imagine very few situations where responsibility for the child would be conferred on the non-biological member of the couple.

All of us on the other side of the fence will have received correspondence and e-mails opposing this legislation, in the vast majority of cases on religious grounds. There has been reference to Sodom and Gomorrah and I reread the verses this morning. The iniquity of the inhabitants of Sodom and Gomorrah is not actually closely specified. The word "sodomy" has a certain meaning but there is nothing in the Bible to specify the conduct or relationship to which it normally refers. We are living in the aftermath of the disastrous earthquake in Haiti and, notwithstanding the use of the phrase "acts of God" by insurance companies we are long past thinking of natural disasters as some form of divine retribution for wickedness or iniquity. Some non-natural disasters can be linked to bad human behaviour but that is a separate issue.

We have been reminded by a certain Northern saga in recent weeks of a passage in Leviticus but, except for such things as the Ten Commandments, we rarely assign a lasting validity to or are guided by the Mosaic law of a nomadic people of thousands of years ago. When the civil partnership legislation was published I happened to be in church the following Sunday and the verse of the lament of David for Jonathan was read out, which I would like to read into the record. The verse reads:

I am distressed for thee, my brother Jonathan; very pleasant hast thou been with me, thy love to me was wonderful, passing the love of women. How are the mighty fallen ...

If one studies the Bible closely, one will note that Jonathan was married. No specifics are given of the precise nature of the relationship between Jonathan and David but if one is to refer to the Old Testament, that passage is at least as striking as the passage on Sodom and Gomorrah. Therefore, one cannot draw any definitive conclusions. I am not aware nor have I seen quoted anywhere any statement by Christ on the subject of gay relationships. They are statements on adultery and so on. There are one or two passages from St. Paul but they are not stronger than his inveighing against fornication in general and various types of non-regular relationships. At one point he said it would be better to be celibate but if one has to, then get married.

The issue is nonetheless one on which churches have taken what can only be described as a very strong position, the Catholic position is well known. We know that the issue of homosexuality has been hugely divisive in the Anglican communion. Most of us look on in horror where Sharia law in other parts of the world leads young men, in particular, to be executed for homosexual acts.

Some proposals have been made for what would in effect amount to discrimination, namely, that offices of the State should be allowed to withhold or not participate in civil partnership ceremonies. My view is that if one takes up a public appointment, one must carry out the duties that the law prescribes and those duties will change from time to time as the law changes. We should not give sanction effectively to homophobia for conscientious reasons.

Like Deputy Flanagan, I would have some regret concerning the matter to which he referred, but I also accept the argument that perhaps this is not the appropriate context to address it. Perhaps another context should be chosen to address issues regarding the situation of siblings, they being a brother and sister who have a certain status. I refer in particular to the inheritance tax position of people who have lived together for a long time in a sibling but non-intimate relationship. There is a loose end in this respect that may need to be tidied up. When I spoke on this matter on a previous occasion, the Leas-Ceann Comhairle took grave exception to any equation of siblings with same sex partners. So be it, and I respect that argument but that area needs to be examined. The Cawley report did refer to it.

I look forward to a detailed and intensive debate on Committee Stage. This is the type of legislation for which sufficient time should be allowed. I am sure the Minister will be open to constructive suggestions for its improvement and amendment in this and in the other House. This is a very important Bill and one that will be remembered as having been passed by this Dáil.

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