Polygamy, marriage and the law of unintended consequences
A marriage that is ‘potentially’ polygamous is capable of being recognised under Irish law, writes Bruce Arnold
NOT much more than two ears ago, during the so-called Marriage Equality Referendum, I took issue with those who sought to introduce, into our Constitution, same-sex marriage. I disapproved strongly of the proposal and used as my starting point my own marriage, which I was content to write about.
Marriage had brought happiness to me and those close to me, and through example, I endeavoured to bring that happiness to others. The married state is, for those who enter it, unique and precious. For those lucky enough to have children, it represents the ‘nature’ of life, and this indefinable quality bestows on marriage its unique character.
I consider myself tolerant and liberal. I have no objection to people opting for an alternative lifestyle, whether it is a homosexual relationship or living in a hippy commune. I do, however, object to the insertion in the Constitution of the proposition that such unions are the bedrock on which the family is founded and our society established.
I argued that no good purpose, given a willingness to help other people with a samesex attraction, can be achieved by redefining “marriage”. It could have been done by other means. It was GK Chesterton who said “don’t ever take a fence down until you know why it was put up”.
With that in mind, I collaborated in the drafting and dissemination of a document in 2015, entitled Same-Sex Marriage in the Irish Constitution, which analysed the institution of marriage and set out the inherent contradictions to which this amendment could give rise.*
I warned that “the traditional restrictions may eventually be seen to be unworkable as well as irrational, giving rise to pressure for further constitutional change or judicial fiat”. We can now witness that process unfolding.
I sent this document to the Taoiseach, the Minister for Justice, the Attorney-General, every other member of the Government, every other TD and every Senator. No one took the trouble to examine the implications of what it was we were dismantling. It was all done with such unseemly haste that the Government even had to correct the Irish language version of the proposed amendment, when I, an Englishman by birth, pointed out to them the ambiguities it contained.
Despite these errors and some grossly improper, if not illegal, funding of what became known as the Yes Campaign, the Irish people introduced the ill-conceived “same-sex marriage” amendment into the Constitution in a flood of media excitement.
That referendum will no doubt be the subject of study by political scientists and others in the future as an exercise in how not to amend the basic law of a State: by emotion.
Amending a constitution is no small thing. It cannot be done on the basis of teenagers crying on television because they cannot marry someone of the same sex and in complete ignorance of the consequences of the amendment. The Supreme Court has now, two years later, delivered the first dividend on that investment in brainless emotion.
We were assured by the Referendum Commission that this proposal would have no effect on existing marriages or on the institution of marriage as we know it, other than to allow others to enjoy it. The status quo was that civil marriage “as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others”.
Again, “the Constitution makes clear that the concept and nature of marriage, which it enshrines, are derived from the Christian notion of partnership based on an irrevocable personal consent, given by both spouses which establishes a unique and very special lifelong relationship”. That was then. The Supreme Court has now unanimously decided, in the case entitled “H.A.H. -v- S.A.A. & ors”, that “the constituent elements of [the former] definition of marriage, have been cut away to the extent that it serves no useful purpose... The combination of the introduction of no-fault divorce and, in particular, the amendment of the Constitution providing for the introduction of same-sex marriage have resulted in a legal institution of marriage that cannot be described in terms of traditional Christian doctrine.” This is now. Where does this leave the practice of solemnising marriages in a Christian church, when civil and religious marriage now have nothing more in common than the name?
On the basis of its new, secular definition of marriage, the Supreme Court decided to set aside another essential element of a marriage contract — that it be to the exclusion of all others — in order to endorse a “potentially polygamous” marriage contract. The polygamous intention of the spouses in the original foreign marriage contract was no longer to be an obstacle to its recognition in this country. What they wanted or intended to do would have very little bearing on the validity of their marriage. Now, it seems, it is all about the formal process, not about the will of the spouses. This rocks the institution of marriage and the family to its foundations.
The reversal of the traditional legal rule tells us that multiple parallel marital relationships (actual or intended) no longer invalidate a marriage contract, and such relationships may even be given legal recognition by the Oireachtas, but only as a form of partnership or cohabitation. The Supreme Court has thus created a new anomalous discrimination between the spouse of such a relationship and the spouse of a first polygamous marriage, to no very obvious advantage to anyone. By granting legal recognition to a first polygamous marriage after the husband had contracted a second such marriage, the Supreme Court also appears to have left him open to a charge of bigamy.
The Supreme Court has added to a wilderness of decay in the legal protection of the most important facets of our lives.
But what choice did they have, you might ask?
I suggest that they could and should have decided quite differently. The text of the Constitution retains an inbuilt theory of natural fundamental rights. In the section so entitled, the family is recognised 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”.
By an acknowledgement formally made and established by those who established this State and set it on its feet, these were rights superior to all positive law. They were also inalienable, meaning they cannot be taken away or given away by manmade laws. That seems to have gone out of the window now...
Legal positivism is a theory that recognises no limitation on the power of making law other than the observance of due process, such as approval by a majority. If such untrammelled power, however absurd and wilful, is now vested in the legislator, we are heading down a road that is truly treacherous.
All the legislator has to do is follow a correct formal procedure and the vital protections afforded by the Constitution will be set at nought. And this is what has been decided, unanimously, in the Supreme Court on June 15, 2017.
What nonsense might now follow? If a majority voted to amend the Constitution to give to the State the primary right to decide on the education of children, replacing the natural role of the family, the Court would uphold that.
By the same logic, the majority could vote to deprive everyone over the age of 90 of the right to health care or state support. They could even vote to permit them to be euthanised involuntarily. Readers will see the territory, located in time and place, to which I am turning their gaze.
I grew up and got married under the half-understood purpose of those natural rights. And though I had trouble understanding the tail-piece, about rights that were superior to all positive law, or inalienable, I came to the belief that such rights could not be taken away or given away by man-made laws, by the cruel power of the majority.
Astonishingly, instead of reflecting on the essential qualities of the institution of marriage, or enquiring whether it could be said to retain such inalienable and imprescriptible rights as are necessary for it to continue to support and protect the family, the Court in the polygamy case simply ignored the question. The judges proceeded to parse the text of the same-sex amendment as requiring for a valid marriage nothing more than a contract between two legally competent persons.
This is a radical failure to respect the ‘higher law’ character of the Constitution, based on the principle that the Constitution does not create or confer fundamental rights, but discerns and acknowledges them. This notion has many names and forms, but it has an enduring quality (as it corresponds to common sense) and was known to Greek and Roman jurists. We urgently need to rediscover and revitalise this fundamental principle.
“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked.
“It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it.
And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times...
“Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.”
Cicero, On the Republic, Bk III
*The full document is available at www.brucearnold.ie
‘The Supreme Court has now delivered the first dividend on Ireland’s investment in brainless emotion...’