Brian Hayes (Dublin South West, Fine Gael)

I welcome the opportunity to contribute to the debate on this Bill. Deputy Flynn articulated the position of the great majority of people in respect of this issue and indicated that they want the Bill to be enacted in order that all citizens - irrespective of their sexual orientation or whether theirs is a traditional or non-traditional family - will have the same rights. It is for this that the legislation must provide.

It is amazing that the Bill has been in gestation for the past nine years. The first joint seminar in respect of this matter - hosted by the Law Reform Commission and the Gay and Lesbian Network, GLEN - took place in 2000. After much toing and froing in the interim, we have reached the point where a Bill dealing with this issue has been placed before the Oireachtas.

The State's ultimate responsibility is to support people as they are and not to cast value judgments on their relationships. Society must be informed that it is in the interests of the State to have people in loving and protective long-term relationships, irrespective of the nature of such relationships. The State has an absolute interest in ensuring that provision be made for those who wish to live in loving, long-term relationships. It must be in everyone's interests for people to live together, to share things, provide for each other in times of illness and in times of good health, protect each other and provide for their retirement. These are natural instincts among all members of society. The State has a vested interest in ensuring that laws should be put in place to facilitate that which I have outlined.

I am currently reading Andrew Marr's book on the history of modern Britain which covers the period from Clement Attlee's election as Prime Minister following the Second World War to the end of Tony Blair's term in office. There is a wonderful section in the book which describes the purge that took place against the gay community in Britain in the 1950s. Much of the discrimination perpetrated against the members of that community in the 1950s and 1960s in Britain was reflected in the hostile and prejudicial reaction to lesbian and gay citizens in this State.

In the 1980s and 1990s, I had many gay and lesbian friends who did not have the confidence to come out or to speak about the nature of their sexuality. We have come a long way in ten or 15 years. I would not underestimate the degree to which this legislation, when it is placed on the Statute Book, will greatly assist people in believing that they are citizens of this country, that they have a stake in it and that their notion of citizenship is fostered and respected in the same way as that of others.

As my party's spokesperson on education, I am aware of the great difficulties young people, particularly those at post-primary level, have in coming to terms with their sexuality. I know the kind of bullying to which they are subjected at school and the fact that the spectre of suicide haunts some of them. However, I also know the sense of discovery they harbour. We should not underestimate the degree to which the Bill will state that people's place in society and their rights are respected. The latter will be a by-product of this legislation's passage into law.

I wish to place on record my thanks to a former Fine Gael Senator, Ms Sheila Terry, who published my party's first position paper on partnership legislation in 2004. In the lead up to the most recent general election, my party, in its manifesto, indicated that it would - whether in government or in opposition - support the introduction of partnership legislation during the lifetime of the 30th Dáil. We, therefore, clearly outlined to the electorate our support for legislation of this nature during the period from the publication of former Senator Terry's position paper to our 2007 election manifesto.

It is important that there be cross-party support in respect of this matter and that it should not be turned into a party-political squabble. There must be broad-based support - such support exists among citizens in general - among politicians for the provisions of the Bill.

When one considers the transformation of Irish society over a short period, one can see the necessity for legislation of this nature. In 1996 there were some 34,000 cohabiting couples in the State. The census of 2006 indicated that in ten years the number of such couples had radically increased to over 121,000. Cohabiting couples had 23,000 children in 1996, whereas today some 75,000 children are memberS of what have loosely been described as non-traditional families. The position with regard to same-sex couples is similar. In 1996 only 150 couples described themselves as being same-sex couples, whereas in 2006 there were over 2,000 such couples. Like Deputy Flynn, I suspect that the number of such couples living together in long-term relationships is well in excess of that figure.

Many myths relating to the nature of the legislation have been circulating in the public domain. In short, the Bill is an attempt to regulate the position of new families which require protection in law. People want to protect both themselves and their partners in a way that provides some certainty. As already indicated, it makes eminent sense that the State should encourage them to do so. People should be encouraged to ensure their affairs are in order and protection should be afforded to them.

I am aware of the outrageous situation whereby members of gay and lesbian couples are not recognised within the hospital system as being their partners' next of kin. These individuals are not recognised as being involved in a long-term, loving relationship with another person. That is an absolute scandal. Another appalling example in this regard relates to someone involved in a long-term relationship whose partner is dying and who is left with no protection either in the context of pension provision or in a legal sense.

This matter is not merely about the extension of rights to those couples, it also relates to the extension of responsibilities. In the context of the law, we are stating that it is important that the relationships of people in the group to which I refer be recognised and we are outlining the rights that accompany that recognition. Equally, however, we are also outlining the responsibilities which accompany it. The position is the same as that which applies in respect of those who are involved in traditional marriages.

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.

The other myth that has been put about is that there should be a freedom of conscience clause. In other words, if I am so appalled by the notion of a gay or lesbian couple having their relationship recognised under civil partnership legislation, I should have the right to opt out of the provisions of the Bill on the basis that this in some way runs counter to my view of the world. 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. We cannot have that. Given that a registrar will be given rights under this legislation to perform a ceremony, if it is the choice of the couple concerned, the primary law cannot give a right to a registrar to opt out of that because he or she is an officer of the State. The notion that under freedom of conscience an officer of the State could effectively be allowed to discriminate against a gay or lesbian couple because of his or her religious beliefs is fundamentally opposed to the existing constitutional provision that applies.

It is worth considering the Employment Equality Act 1998. As Members will know, that Act effectively gave the right of opt-out to denominational schools when it came to certain practices. It certainly gave the right to positively discriminate. I refer to this Act to advance my argument that it is spurious to claim that people have a right to opt out of the legislation if they so choose. I argue that they do not. I wish to put on the record the views of the Supreme Court on the Employment Equality Act 1998, which makes the provisions therein absolutely clear. Section 37 of the Act states:

A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if---

(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or

(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.

I know the teaching unions have a very fundamental view about that section, which I understand. However, it provides that a religious, educational or medical institution can effectively take into consideration things which would ensure that the religious ethos of the institution be upheld and also can prevent employees from undermining the religious ethos of the institution. Under Article 26 of the Constitution, then President Mary Robinson referred the section to the Supreme Court for consideration. The Supreme Court gave a very significant ruling in agreeing that it was constitutional but it put parameters on the constitutionality of section 37. The then Chief Justice stated:

No serious criticism can however be advanced against s. 37, sub-s. 2 which entitles an institution to prefer a particular candidate on the grounds of his or her religion if in fact being of that religion is an occupational qualification for the post in question. The attack has been directed more against sub-s. 1 which entitles an institution to give more favourable treatment, on the religion ground, to an employee or a prospective employee "where it is reasonable to do so in order to maintain the religious ethos of the institution" or to take action "which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.

The 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". The Supreme Court found that religious groups and denominations are recognised and nothing can be advanced in law that prevents people coming together, professing their faith or ensuring that that faith is upheld.

The ruling of the Supreme Court on this issue has a direct relationship to the question of a freedom of conscience cause related directly to the idea of the institution of the religious group itself. It did not allow the State to positively discriminate one way or the other. It simply stated that the religious groups have fundamental rights and nothing should be advanced to undermine their rights as religious groups in the context of the institution. It does not give a right to registrars to opt out. If this Bill comes before the Supreme Court, which it may, I believe the court will rule forcefully again that officers of the State cannot allow themselves to opt in or opt out of the legislation. I believe the Supreme Court ruling clearly directs that registrars, as officers of the State, must enforce this.

In a traditional marriage, of course, the priest, rector or whoever performs a dual function - the civil marriage and the religious marriage. Under the civil partnership legislation this would not be possible because it recognises the role of the religious in terms of the marriage. I do not believe there is justification for the argument some groups have made that we can allow a freedom of conscience clause in this legislation. I do not believe it holds up to scrutiny. It is abhorrent to the Supreme Court ruling relating to the Employment Equality Act. It should be emphasised that the narrower part of section 37 was looked at in the context of the President referring the Act to the Supreme Court for its consideration.

To those seeking a freedom of conscience clause in this legislation, I do not believe that, constitutionally, it holds water, and neither do I believe it would be supported were the matter to come before the Supreme Court again. I ask people, in the spirit in which the legislation has come about, to recognise that this a good day for the country and for those who are looking for recognition of their rights to be upheld by the State, and for people to give this a fair wind when the Bill is ultimately passed by both Houses of the Oireachtas.

See this speech in context