On Thursday, the second stage debate on the Civil Partnership Bill picked up where it left off on December 3rd. The Adoption Bill was debated (see our guest post from Brid Nic Suibhne here) on the same day.
You can read the liveblog of the Civil Partnership Bill debate, including my contributions to it here. We blogged the beginning of the second stage here.
For reasons of space, there will be 2 posts about yesterday’s debate. On will focus on some important arguments made about the operation of the Bill. The second will flag up a line of rhetoric which developed in the course of the debate about the proper place of religion in the republic.
How exactly ought the constitutional protection of marriage to limit the scope of same-sex civil partnership?
Michael Fitzpatrick TD (FF) claimed that, in order to satisfy Article 41 of the Constitution, which requires the State to guard the institution of Marriage from attack, it was necessary to maintain certain material distinctions between marriage and civil partnership. In particular, the State could not legislate for religious responses to civil partnership and could not enable civil partners to adopt children. Deputy Fitzpatrick did not explain why due regard for Article 41 requires the omission of an adoption provision from the 2009 Bill. Aengus O Snodaigh, of Sinn Fein, on the other hand, made some attempt to grapple with the constitutional provisions. See Fiona’s work here and here explaining the ambiguities surrounding Article 41. In any event, Fianna Fail’s position, as set out by Martin Mansergh TD appears to be that there can be no ‘gay marriage’ in the absence of a constitutional referendum clarifying – or in the view of some, altering – the scope of Article 41. He said that ‘Under the 1938 Constitution such fundamental socio-moral issues have generally been reserved to the direct judgment of the people as a matter of direct democracy, as opposed to the representative democracy which deals with most other questions.’
Yesterday a number of TD’s flagged up the Bill’s inadequate protection for children, surely an embarrassment to a government which has hung its hat so often on the promise of a children’s rights referendum. Chris Andrews TD (FF) said ‘I am certain, as sure as night follows day, that legislation will be introduced in due course which offers children of same sex couples the same status and protection as those of opposite sex relationships.’ Alan Shatter TD (FG) thoroughly set out the difficulties with the Bill as it stands. He noted three issues in his speech: a lack of attention to the multiple forms which non-marital families can take, a lack of attention in particular to the needs of families whose children are born through assisted reproduction and a failure to make financial provision for the children of non-marital couples:
The Bill is entirely blind and in denial when it comes to children. There are cohabitees, both gay and heterosexual, in long-term relationships who have children, and who live in such relationships, have done for decades and will continue to do so. … The Bill does not recognise that when a relationship of cohabitees breaks up, provision may have to be made for children just as there is following the break up of a marriage. The Bill is apparently in denial that there are gay couples who have children. One may have a gay couple who has gone through a civil partnership registration and within the relationship there might be a child from a previous relationship that they both parent for many years. An issue arises about whether the non-biological parent has any obligations to that child in the same way as in a marriage a husband may be regarded as having obligations to a child fathered by someone else prior to the marriage taking place….
The Bill, in the same way as the Government and its various predecessors, is in denial about the availability of methods of assisted reproduction. We have no legislation in this House on this area. We had a major Supreme Court judgment on the matter prior to Christmas involving a heterosexual couple, but we also had a Supreme Court judgment only in December on a dispute between a gay father whose sperm was used to facilitate a party to a lesbian relationship to have a child. [McD v L and Roche v Roche. The Minister for Health is expected to propose legislation][Under s.127 of the Bill a] court must have regard to [the rights of any child to whom either of the civil partners have an obligation of support], but the court can make no support order for such child. It can only make a support order for the partner. If we take the contrast, when a decree of dissolution or divorce of a marriage is granted, the courts have an obligation to make “proper provision” under the Family Law (Divorce) Act 1996 for spouses and children. Under that legislation the courts have an obligation to make “proper provision”, the same phraseology, for the gay partner who requires it, but there is silence as to children….We have an obligation to ensure that those children are treated equally to any other child in the State.
Deputy Shatter goes on to note an important anomaly in the Bill’s approach to children; that even though the statute does not make adequate provision for financial support for children of a non-marital relationship, the existence of children of the relationship is taken into account in determining whether a couple are co-habiting for the purposes of the 2009 Bill.
A Freedom of Conscience Exemption?
What if an Irish registrar refused to conduct a civil registration, as did the woman whose case was recently considered by the Court of Appeal in Ladele v. Islington? Deputy Fitzpatrick (FF) ruled out the possibility of including a ‘freedom of conscience exemption’ in the Bill ‘which would give an absolute right to discriminate against people who are registered as civil partners’. He said that such a provision would be contrary to public policy. Martin Mansergh (FF) similarly stated that
Some proposals have been made for what would in effect amount to discrimination, namely, that offices of the State should be allowed to withhold or not participate in civil partnership ceremonies. My view is that if one takes up a public appointment, one must carry out the duties that the law prescribes and those duties will change from time to time as the law changes. We should not give sanction effectively to homophobia for conscientious reasons.
Ciaran Lynch of Labour took a similar view:
It has been suggested that an opt-out clause be inserted for civil servants and others who are obliged to perform public duties in accordance with the law. To my mind, either the legislation guarantees equality or it does not. Whether a person is a member of a local authority or the HSE or is working for the State in a registrar’s office, the law which will apply as a result of the passage of this Bill compels that person to carry out his or her duties. There should be no opt-out clause. If a person is a public servant, he or she has functions to perform. There is a separation between theocracy and democracy, and a civil partnership registration is a secular event, not a religious one. It should be well within the functions of registrars to perform this as a secular service.
Sean Barrett of Fine Gael, by contrast, seemed less certain of the wisdom of this approach:
Section 23… provides that a registrar who, without reasonable cause, fails or refuses to issue a civil partnership form shall, on summary conviction, be liable to a fine of up to €2,000 or imprisonment of up to six months. While I do not believe this will ever happen, it can cause a great deal of unnecessary upset. I do not believe that someone who has a genuine religious difficulty with his or her conscience should be imprisoned for six months and to do so would be ridiculous in this day and age… Although I am certain this issue will never arise, but why create the problem?
Deputy Barrett suggested that the Minister should consider including in the Bill ’a provision in cases in which there are genuine conscientious objections’ . He suggested an amendment along the lines of that championed by Lord Mackay in the United Kingdom. His proposed amendment to the Equality Bill reads: “Nothing in this Act shall have the effect of requiring a person (A) to provide a good or service to a person (B) when doing so has the effect of making A complicit with an action to which A has a genuine conscientious objection.” Lord Mackay withdrew the amendment before it could be voted on. Deputy Barrett further argued that the criminal sanction under s.23 was unnecessary, since ‘someone who wishes to discriminate can be dealt with under existing legislation.’ In addition, he claimed that ‘[s]ticking people into jail for six months will only make martyrs out of them’. He further appeared to suggest that registrars who refused to officiate at a civil partnership for religious reasons should be facilitated in doing so, since ‘[p]lenty of others can perform what has to be performed and a big issue should not be made of this because all it will do is divide society.’