Edit @ 11 am: It has been pointed out to me that the Constitutional Convention ought to be completed its work before the Zappone case is completed, which puts a different spin on one of my points below and does raise serious questions about why this issue has not been prioritised in the workplan for the Convention.
Since the Tánaiste declared his support for marriage equality last week, there has been significant development in the discourse around marriage equality in Ireland from at least some quarters. Two further ministers–Alan Shatter and Leo Varadkar–declared their support in principle for marriage equality. The Minister for Education Ruairi Quinn also declared his support, albeit in the context of a claim that constitutional change would be required. I am like a broken record on this, as are others, but in fact we only think that constitutional change would be required; we do not know. Contrary to popular opinion the Constitution does not define marriage, but marriage has been defined in the context of constitutional cases as being between a man and a woman. However, whether it is exclusively between a man and a woman as a constitutional matter is not definitively known and will not be until we get the Supreme Court judgment in Zappone & Gilligan v Revenue Commissioners. It might, therefore, be wise for members of government to stop speaking as if the Constitution were (a) clear about the meaning of marriage, (b) static in its meaning (McGee case, anyone?), and (c) uncontested. Yesterday the Taoiseach got in on the Act, as did the Fianna Fáil leader Michéal Martin.
In an exchange that sometimes seemed surreal given the fact that Mr Martin was a member of Cabinet when civil partnership was introduced and the government refused to hold what they claimed was a necessary constitutional referendum to allow for marriage equality, Mr Martin declared his personal support for marriage equality (not for the first time) and confronted the Taoiseach with the same words that Éamon Gilmore had used to address the matter the week before. Trying to determine the Taoiseach’s position, and questioning the appropriateness of including marriage equality within the terms of the (fix-it-all) Constitutional Convention, he said:
“What is  surprising is the referral of marriage equality to the convention, particularly given that the Tánaiste has described it as the civil rights issue of this generation. Some would suggest the issue was referred to the convention to buy time and perhaps to avoid having to make a decision on the issue. In referring it to the convention, the Taoiseach raised the prospect of there never being a referendum on marriage equality during the life of this Government and Dáil
I do not need a random selection of citizens to tell me whether I favour marriage equality and neither does the Tánaiste. It is a matter on which the Oireachtas could decide tomorrow morning. I can understand if the Taoiseach wants to go through different electoral systems, and people have different perspectives. This is something on which every citizen has the right to decide. They will not be told or given recommendations on this issue by a random selection of citizens. This is not the type of issue that lends itself to this determination. Governments must lead on these fundamental issues. This should never have been referred to the referendum commission.”
The Taoiseach’s response was to kick the can around for a while, not declare whether he is or is not personally in favour of marriage equality, and then once more put his faith in the Constitutional Convention:
“The Government’s view and decision is to establish a constitutional convention and for this process to be followed through in respect of the issues named in the programme for Government. When the constitutional convention is up and running and decides to reflect on the issue of same-sex marriage and the other issues named in the programme for Government, it will respond to the Government with its view and the Government is committed to making a decision on each of these issues within a four-month period.”
I am not sure that it is inappropriate for the issue of marriage equality to be put to the Convention; after all, if we are going to provide for this in the Constitution at all, then it makes sense for it to be one of the matters the Convention considers. Neither am I entirely as skeptical as some about the fact that the matter is likely to take 12 or more months before it is discussed by the Convention as it makes pragmatic sense to see what the Supreme Court decides in Zappone and whether that decision will be sufficient to deal with the matter. If the Court were to find that the Constitution can accommodate same-sex marriage then a discussion at the Constitutional Convention may be moot.
What strikes me as more interesting about the developments over the last week or so, however, is the growing expectation that, if asked, a politician would be expected to give an answer to the question of whether she personally supports marriage equality (leaving opinions on constitutional possibility to one side) and the possibility that, for mainstream politicians in leadership positions at least, ‘no’ may increasingly become an impossible answer to that question. Should that position develop, it would be significant indeed.
The legal change will still likely take time (understatement?), but the political environment would be one that is receptive to change. It is and would be a sensible approach for journalists, politicians and advocates to pin politicians and public figures down to a clear answer on whether they support marriage equality in principle; to ensure that assertions of constitutional impediments or practicalities are not permitted to act as an escape hatch from answering the question. The answer can of course legitimately be either ‘yes’ or ‘no’, but if things continue as they have done over the last week we will swiftly reach the point at which anything but a clear and unequivocal answer one way or another will be deemed politically unacceptable. Then, at least, we will know where we stand,