Friday, 1 May 2015

9 things the marriage referendum isn't actually about


It’s fairly de rigueur with referendums for the discussion to veer towards issues that in fact have little to do with the referendum or are only tangentially relevant. This is no less the case with the marriage referendum. 

Here is a list of things the referendum does not concern:

1. Religious marriage

The referendum addresses civil marriage only, marriage in the eyes of the State. The referendum will not affect the practice of churches in relation to marriage. Churches are now free to refuse to marry whomever they wish. This will remain the case if the referendum passes. The Draft Marriage Bill 2015 confirms that no religious minister or church will be compelled to marry any two persons as a result of the passage of the referendum. Churches will be allowed to celebrate marriages of same-sex couples, but only if they wish to do so. There is already an exemption in the Equal Status Act 2000 that allows discrimination on the religion ground in the provision of religious goods and services. Churches also enjoy a strong degree of autonomy in the conduct of their affairs under Article 44 of the Constitution.

Bear in mind that LGBT people in general do not have the best of experiences with religion; the prospect of getting married in a church may not be viewed as an attractive option, even if it were available.

2. Children

It is already possible to marry in circumstances where the couple cannot have children or do not wish to do so. Being capable of having children is not a prerequisite for the celebration of a valid marriage. Unfortunately, many married couples cannot have children; their marriages are no less valid as a result. Some couples may decide not to have children or may marry at a point where they cannot have children. These marriages are no less valid than marriages that are blessed with children.

Around one third of children born in Ireland since 1999 have been born outside marriage, many to cohabiting couples.

Some gay couples already raise children. This will continue to be the case even if the referendum does not pass. The Children and Family Relationships Act 2015 provides various new pathways for the recognition of same-sex couples raising children.


Ample research evidence supports the view that children being raised by same-sex couples fare as well as their counterparts being raised by opposite-sex couples, and that the outcomes for such children are equally positive.

3. Surrogacy

Surrogacy raises many difficult ethical and legal questions. Many couples – mostly heterosexual - already avail of surrogacy in foreign states. There is some evidence that surrogacy already happens in Ireland too. Many people have grave concerns about the ethical aspects of surrogacy, and in particular the risk of serious exploitation of women in less developed states. Some countries ban surrogacy outright. Others allow only surrogacy for altruistic purposes only. Notably, some of the countries that ban surrogacy also allow same-sex couples to marry.

At the moment, in Irish law, there is minimal regulation of this practice. While European Union rules regulate the handling by medical facilities of human tissues and cells, surrogacy is currently legal in Ireland and there are few legal restrictions on the practice. As the Supreme Court has highlighted, legislation is urgently needed to address this issue. Notably, the Government proposes to introduce legislation on surrogacy that will ban commercial surrogacy and regulate altruistic surrogacy.

In this learned contribution Dr Conor O’Mahony, Senior Lecturer in Law at University College Cork ably illustrates that the passage of the marriage referendum will not prevent the Oireachtas from passing legislation restricting and regulating surrogacy. Nor will the referendum confer a right to surrogacy, as some commentators have suggested. Married couples, O’Mahony demonstrates, currently do not have a constitutional right to surrogacy services and the marriage referendum will not confer such a right on married same-sex couples. The marriage referendum, in short, has nothing to do with surrogacy.

4. Assisted Human Reproduction

People can already have and are already having children with the help of a donor of eggs, sperm or embryo. In future, this practice will be regulated by the Children and Family Relationships Act 2015 such that, provided certain strict conditions are satisfied, the parents will be the birth mother and her spouse, civil partner or partner of either sex. The child will have a right, at the age of 18, to receive information and contact details for the donor. This law will come into force irrespective of the result of the referendum. The marriage referendum, in short, has nothing to do with assisted human reproduction.

5. Adoption

No person and no married couple have a right to adopt a child. Adoption can only take place where it is demonstrably in the best interests of the child. The aim of adoption is to provide a family for a child, not a child for a family.


Unless exceptional circumstances apply, adoption requires the consent of the child’s birth mother and of any other legal guardian. Comparatively few adoptions have been approved in Ireland in recent years.

Since 1991, it has been possible for a sole gay or lesbian applicant to apply to adopt a child, subject to this being in the best interests of the child. The Children and Family Relationships Act 2015 has introduced laws allowing same-sex couples who are civil partners as well as long-term cohabitants to apply to adopt children as a couple. In most cases this will likely involve the adoption of children who are already being raised by the couple, and who may be the biological children of one or other party. In all cases the adoption must be in the best interests of the child.

6. Polygamy

The amendment permits only the marriage of two people. The amending words expressly confine marriage to two people.  The rule against polygamy is not affected by the referendum. In 2010, Ms Justice Dunne, in the High Court, confirmed that polygamy is against the public policy of the State, and contrary to the Constitutional vision of marriage and the family. This will not change under the proposed referendum.

It is worth bearing in mind that polygamy tends to be practiced in states where women are not treated as equals under the law. Indeed, state approval of the practice of plural marriages tends to be a feature of countries that have a poor record on LGBT rights. Polygamy is a hallmark of patriarchy, of the practice of women’s subordination to men. The marriage referendum, by contrast, underpins the fundamental premise in Irish law that marriage is a union of equals.

7. People marrying their relatives

The same restrictions on marrying relatives that now apply to married couples will also apply after the referendum, if it passes. The Draft of the Marriage Bill 2015 applies the same restrictions to same-sex couples. Basically, to the extent that the law prohibits a person from marrying a particular relative of the opposite sex, the law will also ban marriage with an equivalent relative of the same sex. 


Many of the existing restrictions prevent blood relatives from marrying. The rationale for this, in part, is to prevent children being born with genetically inherited conditions. The existing prohibitions, however, are not restricted to blood relatives and also apply to people related by marriage. The restrictions apply, moreover, regardless of whether the relevant couple can have children. Indeed it is arguable that even if a married couple is not able to have children, there are sound social reasons for restricting relatives from marrying. The restrictions discourage sexual rivalries and help avoid family discord.

8. People marrying their dogs*/favourite tree/themselves

Marriage will remain a union of two adults. Marriage fundamentally is and will remain a voluntary union, such that the union of a person and an animal or an inanimate object will not be possible, given that an animal or inanimate object cannot give a valid consent to a marriage.

[*This is a real suggestion made to a friend of mine by what is now possibly a former friend of his: "sure they'll be letting dogs get married next."]


9. Consummation

If a husband or wife cannot consummate a marriage due to psychological or physical impotence, the marriage may be avoided by the other party. Consummation involves a single act of sexual intercourse. It does not require that the couple be fertile, and can be performed while using contraception. The ability to procreate is irrelevant in this context.

Until it is avoided, however, the marriage remains valid. The right to avoid, moreover, can be lost, in which case the marriage will remain valid. If two parties marry knowing that the marriage cannot be consummated in the way traditionally required by law, the right to avoid arguably is lost. Thus it is unlikely the courts would entertain an argument that a same-sex couple’s marriage was voidable on grounds of inability to consummate as both parties will have known that sexual intercourse was not possible. The couple will arguably be treated as having waived any right associated with non-consummation.


Bonus red herring: Adultery

Adultery is understood in Irish law to involve an extra-marital act of sexual intercourse with a person of the opposite sex.  So the question arises, what happens adultery if same-sex couples are allowed to marry?

While it is likely that adultery rules originally were designed to deter procreation outside marriage, the definition of adultery does not require that the parties thereto are capable of having children together.  The parties must be respectively male and female, and there can only be adultery in law if a court is satisfied that sexual intercourse took place.  (Though the court can infer adultery from the circumstances).  It is possible, however, to partake in adultery even where the parties are infertile, are using contraception, or where the woman is beyond child-bearing age. 

Adultery is only relevant in Ireland in the context of judicial separation. It is one of the six grounds for judicial separation. While it is true to say that same-sex infidelity does not constitute adultery in the legal sense, infidelity with a person of the same sex would provide a basis for judicial separation, under the behaviour ground. While adultery is a ground for judicial separation, it tends to be ignored by the courts when granting remedies following divorce and judicial separation.

Some jurisdictions have expanded the legal concept of adultery to include same-sex activity. Arguably, for a spouse, the issue of infidelity is no less pressing where it involves same-sex activity than where it is with a person of the opposite-sex.


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