Rónán Mullen (Independent) | Oireachtas source

I move amendment No. 3:

In page 13, between lines 5 and 6, to insert the following:“(c) by the insertion of the following new subsection after subsection (10)—

“(11) Nothing in subsection (3)(b) and subsection (4)(b) as amended shall be construed to prevent or invalidate the solemnisation of any marriage, or be construed so as to refuse to register or cancel the registration of any solemniser, on the ground that a form of ceremony in use by any registered solemniser, prior to the commencement of this Act, is no longer compatible with the requirements of subsection (3)(b) and subsection (4)(b) as amended.”.”.

Cuirim fáilte roimh an Aire. Is comhtharlú é go bhfuil duine a bhí in aghaidh an reifrinn ag moladh an leasú áirid seo mar ní bhaineann an leasú atá molta agam le ceart an phósadh comhghnéis. D'fhéadfá a bheith go mór i bhfábhar an reifrinn agus i bhfábhar an leasú atá molta agam inniu. Baineann sé seo le seasamh an Rialtais agus an gheallúint a thug an Rialtas nach mbeadh aon chosc ar eagraíochtaí creidimh nó constaic ina mbealach agus iad ag pósadh lánúin go sibhialta chomh maith le hiad a bpósadh lastigh do shacraimint nó rialacha na n-eaglaisí cuí.In a sense it is a coincidence that the amendment before the Minister is coming from a person who was an opponent of the referendum because the amendment I propose today does not really have anything to do with the rights and wrongs of the change the people made to the Constitution last May. As I stated on Second Stage, that decision is made and there is nothing in what I propose today that seeks to detract from or undermine that decision. I accept that decision and that is the state of our law. The definition we have of marriage in our country is changed and this legislation reflects that. However, to recall what the Minister herself said on the Second Reading in the Dáil on 23 September:

Historically, many religious bodies in Ireland have carried out the civil aspects of marriage simultaneously with the religious aspects and this will continue to be the case. It has always been the case that religious bodies have substantial discretion in choosing which marriages to solemnise in accordance with the tenets of their beliefs, and ... this will remain the case. Nevertheless, it was considered important to make it absolutely explicit in the Marriage Bill that religious bodies will not be compelled to solemnise particular marriages as a consequence of the amendment of statutory provisions.

The Minister's intention is clearly expressed there and it reflects the general tenor of what was stated around the time of the marriage referendum, that is, not only had people no objection to religious organisations continuing to maintain their own rules and their own definition of marriage for their own purposes but it also was well understood that there would not be or certainly should not be any obstacle to the role of religious organisations in solemnising marriage in its civil dimension in the context of weddings taking place in church and so on.

I have looked at this matter carefully and have sought and seen legal advice on it. Moreover, the Presbyterian Church to my certain knowledge has been in contact with the Minister regarding its concerns about all of this. It believes the legislation as drafted is flawed and would or certainly could be interpreted so as to create a doubt about the validity of marriage civilly witnessed within a religious setting by religious solemnisers. This is because of the way in which the declarations required by the State of all solemnisers is being changed to a gender-neutral form.

I believe what has happened is the Minister has missed the goal, the goal being to leave untouched or to not interfere in any way with the role of religious solemnisers solemnising marriage in a civil context. This problem is due to what I can only regard as problematic drafting. What has happened here arises because the legislation focuses on the notion of a form of a ceremony, which is what the registrar, an t-Ard Chláraitheoir, is required to approve and is the basis on which a religious solemniser is approved and put on the register or on which solemnisers could be cancelled from the register if they are not using a form of ceremony that is approved by the State. It is this focus on the form of a ceremony that gives rise to the problem and the misunderstanding of the meaning of that rather technical and different word, "include", appears to have contributed to a potential confusion in this regard which the Government must remedy. It would be wrong not to do so because as legislators, my job and that of all Members is to scrutinise proposed legislation according to their best lights.

What has happened here is that as the Minister is aware, section 21 changes the declarations set out in the 2004 Act in section 51 and requires of anybody solemnising a marriage a declaration from the parties “to the effect that each of them accepts the other as a husband, a wife or a spouse, as the case may be”. This is in circumstances where it previously was a case that the form required was there would be a declaration to the effect that people would "accept each other as husband and wife". It is interesting that in other sections of the legislation, one does not encounter this triple option of husband, wife and spouse. One has the substitution of "husband" or "wife" by the gender-neutral term of "spouse". However, what is problematic in this regard is that the form now required is a declaration to the effect that the parties take each other as husband or wife or spouse, as the case may be. Each of those terms must mean something different. In the case of a same-sex couple, according to the new definition of marriage, one might reasonably have a situation of a husband taking a husband or a wife taking a wife. The fact this triple distinction has been included here and the reference to "as the case may be", suggests clearly there is an inclusivity intended of different options and scenarios, be they a husband-and-wife scenario or a same-sex scenario.

The problem is that the 2004 Act requires that any form of ceremony, whether it be a secular solemniser, a religious solemniser or a State ceremony, must include and be in no way inconsistent with the declaration. However, the law, as amended, requires any form of ceremony to include and be in no way inconsistent with a declaration to the effect that parties take each other as husband, wife or spouse, as the case may be. The problem is with the word "include" because this does not refer to a specific ceremony. This is not about the marriage of Joe and Mary Bloggs or Joe Bloggs and Mary Bluggs but pertains to the form of ceremony which, in the Catholic context basically is the rite of marriage and which to my knowledge is not even established or provided for in Ireland, and really it applies to any religious organisation and might apply to a secular organisation.

Clearly however, if one considers the form of ceremony used, for example, by the Presbyterian Church, it talks about "Do you, N, take N to be your wife?; do you, N, take N to be your husband?". My point is the form of ceremony the Presbyterian Church uses refers exclusively to husband and wife. The legislation, as amended, now requires that if religious organisations are to have their solemnisers included on the register and not cancelled therefrom, they must have a form of ceremony that includes a declaration to the effect that the parties take each other as husband, wife or spouse, as the case may be. In other words, my contention is the Minister is placing a burden on the religious organisations involved to change their form of ceremony. It is at least possible, it is a legitimate possible reading of this legislation that the Minister is doing this. I do not believe the Minister intended to do this but it is a poorly drafted amendment in the Bill.

The problem is that elsewhere, it is true, the Minister does her best to give guarantees to religious organisations that they will not be interfered with in their form of ceremony. The Minister goes to great pains to provide that a religious solemniser shall not solemnise a marriage, except in accordance with a form of ceremony which is recognised by the religious body.It is not that they do not have to. It is that they may not solemnise except in accordance with a form of ceremony approved by their own religious body.

The Minister has gone even further by putting in a fail-safe provision that says that nothing in the legislation would require them to solemnise in a manner that is not in accordance with that approved by their religious body. She has set up this protection that says to religious organisations involved in solemnising marriage civilly that one cannot use a form except one's own. That provision only goes halfway because she has also set up a situation where, on the face of it, it looks like they must use a form which is different from what they currently use. It is a bit like the Model T car where one could have any car one wanted as long as it was black. One can only use one's religious organisation's form of ceremony but one also has to use one that meets the requirements of the State. The requirements of the State are being changed in this legislation because the Minister is putting in a gender neutral form of wording that must be part of the declaration, one of the key declarations to be made by the parties to a marriage - husband or wife or a spouse, as the case may be. That does not relate to the individual ceremony but to the form which is approved. That sets up two potential problems. There could be a doubt about future weddings and future marriages where it might be found that the form of ceremony in use by the religious organisation was not such as could have been approved under the new legislation. The Minister has unnecessarily raised an issue about the validity, potentially, of marriages that have taken place.

The Minister has created the potential problem that an tArd-Chláraitheoir, or the Registrar General, might feel under an obligation to put in issue the form of ceremony being used by religious organisations, either as a condition of solemnising or approving future solemnisers or even, potentially, cancelling the registration of existing solemnisers. All of this has caused unnecessary confusion.

The Minister has been contacted about this by parties who are directly involved in solemnising marriages. I would be grateful to hear from her to what extent she has engaged with their concerns. Their concerns do not involve putting in issue the result of the referendum but simply involve maintaining the status quoas regards their right to be involved in solemnising marriage in its civil dimension within the context of their ceremonies. It is not a lot to ask to get that right and to put that issue beyond doubt which is more important, I would submit, than meeting a deadline today or any particular deadline. We are not at the end of term, or at least I do not think we are, but one never knows with all the talk about the election, when it will happen or whether it will happen.

What is the solution? I could have drafted an amendment that baldly expressed the idea or requirement that religious organisations, or that certain organisations, would not be obliged, or would be free, to have ceremonies that were exclusively husband and wife and excluded same-sex couples. Instead, I adopted a minimalist approach by proposing an amendment which simply provides that forms of ceremony currently in use shall not be put in issue as a result of this legislation. I submit that it is a minimalist issue. It is a tactfully put amendment because it simply seeks to ensure that there are no consequences for current solemnisers. My amendment states:

Nothing in subsection (3)(b) and subsection (4)(b) as amended shall be construed to prevent or invalidate the solemnisation of any marriage, or be construed so as to refuse to register or cancel the registration of any solemniser, on the ground that a form of ceremony in use by any registered solemniser, prior to the commencement of this Act, is no longer compatible.

In other words, should it be found in the future that what this legislation means is that the forms of ceremony being used by religious organisations fall short of the requirements of the State because the State now requires that these forms must include a declaration that the parties take each other as husband, wife or spouse, as the case may be. If that is construed as to mean that their form must be as broad and gender neutral as that, whatever happens in the individual ceremony being a separate matter, then we have a problem. My amendment seeks to ensure that there is no doubt about the solemnisation of any marriage that has taken place and that there is no doubt about the status of a religious solemniser or a registered solemniser, as a result of the change in this legislation.

To further support the statement that I have taken a minimalist approach, I have not gone into the standing discretion which an tArd-Chláraitheoir has to approve or refuse a form of ceremony for use in the solemnisation of civil marriages. People might have good reason to be concerned about what the future may hold in terms of how an tArd-Chláraitheoir, with a particular political view, might behave vis-à-visreligious bodies involved in the solemnisation of marriage. Let us remember that it is not just in law that religious solemnisers must comply with the form approved by their religious bodies. They must also comply with the requirements of an tArd-Chláraitheoir. They have to meet the test set out that registered solemnisers shall not solemnise a marriage except in accordance with a form of ceremony approved by an tArd-Chláraitheoir and which includes and is in no way inconsistent with the declarations specified, which is the problem one. A registered solemniser who is not a registrar is recognised by the religious body. Recognition by one's own religious body of the form one is using is a necessary but not sufficient condition for one's ability to solemnise a marriage and there is the nub of the issue.

I have put this as best I can. I hope the Minister has given this more consideration because she did not have much of an opportunity to respond on Second Stage as she was under time pressure. I was disappointed that she simply averred that I was incorrect. I hope time has been taken to examine my proposal. This is not something I am taking on the fly or bringing up to be obstructive. I am trying to do my job as a legislator by pointing out what seems to me to be an obvious ambiguity. The Minister has taken enormous steps to avoid ambiguity elsewhere in the legislation, not least in section 7 where one already has a situation where religious solemnisers must comply with their own religious bodies. She has put in another clause that states nothing here shall compel them to marry according to their own form of ceremony. She looked for the arcane and dealt with it in advance there. The concern I have raised is a serious one and I hope the Government will take it onboard.