Brian Hayes (Dublin South West, Fine Gael)

One person's guillotine is another person's filibuster. I watched the debate in this House and fair is fair. There was a fair articulation of the views but like all things, a conclusion must be reached. As I note the Senator is smiling, the suggestion of a filibuster in respect of the parliamentary device he used at the time may have had some justification. However, I make the point that we all must respect one another's view on this issue.

I wish to deal with the elephant in the room, which has been brilliantly introduced to the debate today by Senator Zappone when she spoke of the land of paradox and equally by Senator Bacik when she stated that full equality has not been restored. Moreover, the same argument was made by Senator Mullen, albeit in another way. One should be clear that civil partnership is not marriage because it cannot be marriage. The only way in which marriage can be changed under our constitutional architecture is by constitutional referendum. If one examines the existing High Court rulings, it is absolutely and fundamentally clear that the precedent and view of the Irish courts is that a marriage is a marriage between a man and a woman. I note the case of Zappone-Gilligan against the State effectively tries to establish the right of the Irish State to recognise a marriage conducted in another state. I understand that matter is still before the courts. However, the current position reflects the High Court judgments that have been made. The Oireachtas cannot introduce legislation when it lacks the constitutional power to so do. A fundamental requirement in the Constitution is that the Oireachtas can only pass laws that are consistent with the Constitution. It is patently inconsistent with the Constitution under the existing judgments of the courts to suggest that this House or the other House could impose a definition of marriage on same-sex couples. Consequently, one must be honest that civil partnership is not the same thing as marriage.

I understand the legitimate expectation of those who argue it should be the same and this debate, as Senator Bacik rightly noted, will take place in Ireland. The programme for Government contains a commitment to have a constitutional convention in which that issue will be explored with many other issues over the course of the next few years. However, to be clear and up-front with people, if marriage per se is to be extended to same-sex couples, it will require a constitutional referendum of the people. It has been the collective view of parties and Independent Members this year and last that a majority for such a proposal is not in place at present. People can have a legitimate expectation for such an extension and can continue to campaign for it. However, the only way in which it can come about is through a constitutional referendum. In a sense, the comments by Senators Zappone and Mullen point to the arguments made by the present Government and its predecessor.