Jim Walsh (Fianna Fail) | Oireachtas source

Aontaím le cuid den méid a dúirt an Seanadóir Mullen ach nílim cinnte go bhfuil an ceart aige i ngach rud a dúirt sé. Tá suim agam san ábhar seo agus ba mhaith liom é a phlé leis an Aire chun go mbeidh mé féin cinnte nach bhfuil dáinséar sa Bhille seo atá romhainn.

I welcome the Minister's answer. I concur with much of what Senator Mullen said on the issue. I make a distinction. I have read closely section 7, which the Minister mentioned. It is fairly clear, but I might ask for clarification on one or two points. I draw comparison relating to the phrase "Nothing in this Act or any other enactment shall be construed as obliging". Senator Mullen's amendment states: "Nothing ... shall be construed to prevent or invalidate the solemnisation of any marriage". Sometimes nothing obliging somebody to do something does not mean conferring legality on it. Undoubtedly this will be challenged. There are many well-funded gay ideological groups which are very active in challenging all sorts of beliefs among people who do not agree with their point of view. There are many examples of that, particularly in our neighbouring island, if one follows it closely.

I am anxious to ensure that it is crystal clear that nothing in the Bill or in the changes we are making in redefining marriage will place any obligation or put any of the churches or their priests in a position where they can be successfully challenged - I know they can be challenged - in the courts for sticking to their religious teachings and beliefs.

Religious liberty is a cornerstone of fundamental human rights and is a constitutional right. In this there is a certain danger of entering a sphere of conflicting constitutional rights which may have to be adjudicated on by the courts. That is why I believe the intention of the legislator should be absolutely clear. It is not the courts' job to make up legislation; it is their job to interpret the legislation that we have passed. So the first distinction is with regard to preventing or invalidating, as opposed to not obliging or construed as obliging.

I am reasonably satisfied on the second point I will make relating to a religious body recognising a particular form of marriage. There is a distinction between a religious body and a religious solemniser in section 7(1)(b), which states, "to solemnise a marriage in accordance with a form of marriage ceremony". The phraseology is slightly different. There may be a need for it, but I want to elicit more from the Minister in that regard.

Section 7(2) states: "“form of marriage ceremony” includes that form in so far as it relates to the sex of the parties to the ceremony;". That would seem to refer specifically to same-sex couples. I ask the Minister to clarify that. I welcome that the Bill does not state, "Nothing in this Act shall be construed" but it states, "Nothing in this Act or any other enactment shall be construed". To me, not as a legal person but as a layperson interpreting the law, it gives some comfort that nothing, not just this Bill, but in any other laws - equality legislation or anything else, would in any way infringe the religious liberty of churches and of their priests to interpret the law in any other way. They only need have regard to their religious teachings regarding what will be - unless the churches change at some stage - opposite-sex or heterosexual marriages. There will be no obligation by the State to interfere in any shape or form with that or expose them to any successful legal challenge. If the Minister gave me that comfort, I would be happy. I suggest to Senator Mullen that if we get that, the amendment may be unnecessary.