Seanad debates

Wednesday, 25 March 2015

An Bille um an gCeathrú Leasú is Tríocha ar an mBunreacht (Comhionannas Pósta) 2015: An Dara Céim - Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015: Second Stage

 

10:30 am

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I am honoured to introduce the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 into Seanad Éireann. The Bill sets out the proposed constitutional amendment on the issue of marriage equality to be put to the people in the referendum on 22 May 2015. If the referendum is approved by the people, couples will have a right to marry without distinction as to their sex.

The Government agreed on 5 November 2013 that a referendum should be held in the first half of 2015 on the question of enabling same-sex couples to marry. The Government's decision was in response to the report of the Constitutional Convention. The convention's third report, "Amending the Constitution to provide for same-sex marriage", issued in June 2013, recommended that an amendment be made to the Constitution to provide for same-sex marriage. Obviously, I would like to acknowledge the contribution to these deliberations of the Senators who were members of the convention.

The Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 was published on 21 January 2015 following Government agreement on the proposed wording. The Government has since agreed, on 3 March 2015, the general scheme of the marriage Bill 2015, which sets out the legislative changes that will be undertaken if the referendum is passed by the people. That scheme was circulated by me to Senators on 9 March 2015. The proposals provided for in the general scheme are, of course, conditional on the decision of the electorate on the referendum.

The Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 provides that, if the referendum is passed, a new section will be inserted after section 3 of Article 41 of the Constitution. That section, Article 41.4, if approved by the people, will contain the following wording: "Marriage may be contracted in accordance with law by two persons without distinction as to their sex." No other amendments would arise in respect of Article 41. The wording is intended to give a right to marry to couples without distinction as to their sex. If the wording is approved by the people, there will be a corresponding obligation and requirement on the State to respect and vindicate that right in its legislation. Therefore, it would not be open to the State to maintain in being legislation which prohibits the marriage of same-sex couples. Legislation would have to be enacted to enable marriages to take place between same-sex couples.

I propose to outline the rationale behind the wording proposed for the thirty-fourth amendment. The first element of the wording, "Marriage may be contracted," draws on the precedent of Article 41, which recognises marriage as an institution. The wording confirms that the right being proposed in the constitutional amendment relates to the issue of access to the institution of marriage. The decision to use the term "contracted" is for the following reasons. It is the term already used in Article 41.3 in regard to marriage. Furthermore, the term confirms that what is at issue is civil marriage, which is a contract between two persons in the eyes of the State. The phrase "in accordance with law" has been included in the proposed wording to confirm that marriage would continue, as at present, to be regulated by statute and by common law. The phrase "without distinction as to their sex" reflects language already used in Article 16 of the Constitution. Articles 16.1.1° and 16.1.2° use the phrase "without distinction of sex" with regard to the eligibility of citizens for membership of the Dáil and the right of every citizen to vote for members of Dáil Éireann. The wording proposed for the thirty-fourth amendment builds on the language of that precedent to provide for a couple, regardless of their sex, to be eligible to marry.

There has been some commentary on the decision to use the term "sex" rather than "gender" in the wording of the proposed amendment. The reason the term "sex" has been used is that it is the term already used in the Constitution. Furthermore, the barriers which prevent persons from marrying under Irish law are impediments relating to a person's sex rather than to a person's gender.

The Irish wording of the amendment was changed on Committee Stage in the Dáil in the interests of further clarity. The view of the Oireachtas translation service and of the other language experts that I consulted was that the concerns expressed regarding the proposed wording were unfounded. However, the Government considered it important that the electorate should have absolute confidence in the wording proposed for the amendment in both English and Irish. As a result, the Government decided to propose a more literal translation of the English wording. The amended wording, as agreed on Committee Stage in Dáil Éireann and based on the recommendation of the Oireachtas translation service, is as follows: "Féadfaidh beirt, gan beann ar a ngnéas, conradh pósta a dhéanamh de réir dlí." This wording essentially can be translated into English as: "Two persons, regardless of their sex, can contract a marriage in accordance with law".

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