Get real: the courts will make sense of referendum results
LESS than a decade ago the people decided, by way of a referendum, to expand the availability of marriage, to stop it being denied to some. Instead of marriage being a union of man and woman, the marriage equality referendum recognised and endorsed the rights to all to what the people decided was a special institution with constitutional protection.
LGBTQ+ people regarded it as a major leap forward, as did a majority of the electorate who voted, allowing them to make the same formal commitments to each other as heterosexual people.
Next Friday the Government wants to agree by way of another referendum to delete the statement in the Constitution that marriage is the institution ‘on which the family is founded’.
Given that so many families are not constructed on the foundation of marriage – but are no less than those that are – this would seem a logical and fair thing to do. If that was all the Government wanted, then I suspect that referendum would pass easily.
However, in referring to the family, the Government also wants to put new words into the Constitution – ‘whether founded on marriage or on other durable relationships’.
It keeps the recognition of the family as ‘the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law’.
But the expanded definition has confused things and given those who want to leave the Constitution alone an opportunity. It has caused people to ask if a marriage is now treated the same as a ‘durable relationship’. In turn, that allows people to ask just what a ‘durable relationship’ is, what legal standing it has and how that impacts on existing laws.
To end a marriage, a divorce is required and is not necessarily easily obtained.
But no such formal declaration is needed to register a ‘durable relationship’ or to end it.
The reality is that the courts will decide on such things, as they do already. The status of marriage remains in the Constitution – ‘the State pledges itself to guard with special care the institution of
People have asked just what a durable relationship is
Marriage… and to protect it against attack’.
There are many safeguards in case law and legislation that will not diminish the rights of married people.
Minister Roderic O’Gorman has said a durable relationship referred to a serious and tangible relationship that is not fleeting or transient, that it is one of strength, stability, commitment, that gives value to society.
He wants all of these recognised, so they can subsequently get proper recognition in legislation. It will help one-parent families, or co-habiting couples living together unmarried, whether they have children or not, and more besides.
It means that ‘durable relationships’ can be given proper recognition in legislation.
The Oireachtas will make laws to satisfy the Constitution and the courts can decide if it has been done correctly.
That seems fair enough. Talk of recognising polygamy or ‘throuples’ seems designed to create the impression that the courts would be soft and recognise all such relationships as durable.
Let’s get real. The courts are bound by the Constitution but they also interpret it with common sense.