Michael McDowell (Independent) | Oireachtas source

It is not the same thing. Let us be clear about this. No insult is offered to anybody for querying the wisdom of what is being proposed here. The first thing we should remember about the Constitution is that "an teaghlach" is the Irish word used in the Constitution to cover the family. One will not find anywhere in the Constitution any reference to the proposition that a woman's place is in the home. It is simply untrue to assert that. It is being asserted day in and day out. RTÉ uses that phrase "women's place in the home". There is nothing in the Constitution that suggests women's place is in the home. There is a recognition of their contribution to an teaghlach, to the family, that they should not be obliged by economic necessity to work outside the home against their wishes and that the State should back them up if they want to remain with their family and to abstain from work.

There are plenty of issues that arise on that front but I want to deal with the definition of the family here now.It is proposed that the definition of the family should be extended to families based on marriage and-or other durable relationships. Let us be clear about one thing. The Constitution, as proposed to be amended, would still say that marriage is the fundamental unit group of society and that the State must protect it. If this change is made, families based on "other durable relationships" will be given the same status as marriage and will be entitled to the same protection as marriage is at the moment. That is what is proposed because the family, based either on one or the other, will be entitled to the same protection.

We are being asked to accept the proposition that the "other durable relationships" are effectively the same as marriage. For that reason, we should pause and ask ourselves if this is either necessary or desirable. I mention that today the Supreme Court delivered in the O'Meara case a hugely important decision. It has effectively looked at Article 42 in its entirety, and has looked at it with a view to determining whether it is legitimate, for instance, for the State to withhold pensions from widowers with children, and from people who are not in the same position as a married couple would have been for social welfare purposes. It found that the State's obligation to children is such that distinctions between non-marital and marital children for the social welfare purposes mentioned in that case are not constitutional. We have to take a very close look, and I am surprised the Minister's speech did not deal with the O'Meara case because it came out today. It is the Supreme Court, prior to this referendum, saying that the State may not discriminate against a parent of children on the basis that he or she was not married to the other as a basis for distinction between entitlement and non-entitlement to social protection.

The second thing I want to say is this. I believe in marriage. I believe in marriage for this reason: it involves simply more than cohabitation. It involves more than that, in that it is a solemn decision by two people in the eyes of the law to make commitments to each other and to any children they may have. It is a commitment between two people and the State as to their obligations and - if I may use the terrible "D" word - their duties. Once one gets married, one has a duty to one's spouse and to any children one may have. Those duties are inherent in the concept of marriage. As the Minister said on the provisions of the Constitution dealing with education, in that area again not merely do parents have constitutional rights regarding their education of their children but they have duties in respect of the education of their children. The whole concept of duty seems to be one that we are devaluing to some extent.

The point I am making is this: why get married at all, if one can cohabit and have exactly the same status in the eyes of the law? The Minister says he is going to protect the institution but how is he protecting it when he says that one can opt out of it without consequence? The Minister, in his address to this House, said that he is talking about couples, whether they have children or not, and that they constitute durable relationships. Has he thought about how the Murphy decision on taxation applies here? As the Minister knows, we doubled tax allowances and tax bands for married couples. Is it to be the case now that people who have made no commitment in the eyes of the State but who are just long-term cohabitants are entitled to double the tax allowances and double the bands? The Supreme Court's decision in Murphy was based on the family and protecting the family.From now on, will people who have been cohabiting for a long time - or a short time, because length of time does not seem to have much to do with it according to the jurisprudence I have seen - be entitled to call on the State to treat them on the same basis as are married people because they also constitute a family? There are other issues. The Minister of State, Deputy Richmond said on television the other day that from the point of view of family reunification, long-term cohabitation will be of relevance. Of what relevance, we do not know.

I propose to table an amendment tomorrow to do two things. First, to state that the words "whether founded on marriage or other durable relationships" should be between two persons as may be prescribed by law. I want to put it up to the Minister to accept that. If it is to be founded on a relationship, is it to be one between more than two persons? If it is, he should not just airily dismiss throuples, bigamy, polygamy or polyandry. Is the Minister confining this new family he is trying to create to a relationship between two persons as its foundation? If the Minister is not, he should take a look around a few corners because he is in fact envisaging a different set of relationships.

Second, the Minister has said to Members of this House in private briefings that the term "durable" will be determined by the Supreme Court. The amendment I intend to table tomorrow will say that it should be as prescribed by law. It is for the Oireachtas, not for the courts, to decide what is or is not a durable relationship. If the Minister cannot define what "durable" is - he has not yet and will not in the course of this referendum campaign - he has stated it is not the same as durable in the context of European law. He has told the other House that but he has not said what it does mean. If he cannot define it, he is stating that in the Constitution, the family is to be changed in a way these Houses will not decide in the future but that the courts will decide in the future. That is simply bad politics and bad legislation. It is a bad concept to simply say, "Pass this legislation and we will find out later what it means."

I had a good friend, Adrian Hardiman SC, who later became a Supreme Court judge. He opposed the eighth amendment when it was originally introduced. He appeared on the "Questions and Answers" television programme chaired by John Bowman and said that were it to become law, it would lead to travel injunctions. All the pro-life people, including William Binchy and the rest of them said "Nonsense, you're exaggerating." However that is what the courts interpreted it to mean.

I do not believe, especially in light of the O'Meara decision today, which effectively extends constitutional protection to children of non-married parents, that this House should put an amendment to the Constitution to the Irish people, the terms of which we ourselves are not willing to define. We are not willing to define what is a durable relationship and we are not willing to say why, for instance, a cohabiting couple should not, if this constitutional amendment is accepted, be treated equally for taxation purposes by virtue of the fact they are cohabiting. Were he to look around a few corners by looking to immigration law, to succession law, to pensions law and to a series of issues of that kind, the Minister would find there is every good reason to proceed with caution.

My last point is that we are being rushed through this legislation today because as a gimmick, the Government decided this referendum would be fixed for 8 March, International Women's Day. The commission has told the Government it must have the finalised text by tomorrow evening and that is the end of the matter. Our amendments cannot be accepted because they cannot go back to the Dáil. To put the referendum on International Women's Day is a worthless, cheap gimmick. This proposal deserves far more consideration and thought.To those who say it reflects the output of the all-party committee, I say that that is not so. It differs from it, and the members of that committee have expressed disappointment with it on that account.