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

I propose to respond to amendments Nos. 1, 2 and 7 together.

Amendment No. 7, which is the substantive amendment in this group, seeks to insert an additional clause in the Constitution that would explicitly provide that article 41.4, if passed, could not be used " to prohibit, control, or interfere with the operation of Articles 42 or 44". This additional clause would have the effect of limiting the constitutional effect of the proposed amendment of the Constitution. It would effectively be subordinate to Articles 42 and 44. At the same time it would prescribe how Articles 42 and 44 could be interpreted if they had to be read with reference to this provision.

Supreme Court case law, as Senators are very well aware, demonstrates that the court has over the years interpreted provisions of the Constitution in a harmonious and coherent manner. Article 44 gives robust protections for freedom of religion. These protections will remain in place. The general scheme of the marriage Bill, which I circulated to Members of both Houses on 9 March and which will be introduced as a Bill in the event that the referendum is passed, reflects these protections. It provides that nothing in that Bill, if enacted, would compel a religious body to recognise a particular form of marriage ceremony or a religious solemniser to solemnise a marriage in accordance with a form of ceremony not recognised by the religious body of which he or she is a member.

However, the core proposal in this referendum is about making available to same-sex couples a right to marry that is not available to them at present but is available to opposite-sex couples. If the people approve this proposal in the referendum, this right will also need to be protected. I would be concerned at the implication of these amendments that there would be a hierarchy of rights whereby one person's rights to freedom of religion would always be superior to another person's rights to equality of participation in our society.

I am concerned, furthermore, at the explicit reference to Article 42, which addresses education and the rights of children. The proposed constitutional amendment is not about children or education. It is about marriage. It is misleading to seek to add issues into the equation that are not relevant to the aim of the proposed amendment.

Amendments Nos. 1 and 2 are technical amendments to reflect the presence of the proposed new clause inserted by amendment No. 7. For these reasons I cannot accept the amendments.