CPCROCA 2010: de Londras on Civil Partnership and (Marriage) Inequality

In this contribution to our blog carnival on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, regular HRinI contributor Fiona de Londras considers the implications and burdens of introducing civil partnership without liberalising civil marriage.

It goes without saying that the Civil Partnership and Certain Rights and Obligations Act 2010 is, in itself, a significant if not monumental piece of legislation for a country that only decriminalised male homosexual sex in 1993. However, even in the midst of the celebrations that rightly accompanied the passing and signing of the Act, it is appropriate to take pause and think about the implications and burdens of introducing a system of civil partnership without opening marriage up to same-sex couples.

One of the main objections to the failure to recognise same-sex relationships in Irish law was not only that it excluded people from a range of rights and obligations that attach to marriage (most of which are now attached to civil partnership), but also that recognising opposite-sex relationships without recognising same-sex partnerships constituted an inequality. In other words, it sent out a value-laden message from the State about what kinds of intimate adult connections are and are not worthy of recognition by the State. It is important to recognise that the introduction of civil partnership does not remove this inequality—it may lessen it somewhat; it may set in train a sequence of events in which it is eventually neutralised; but it does not remove it. Rather it constitutes the enshrinement of inequality in law without, in my view, the State properly having discharged the burden of proving that such inequality is justified. Continue reading “CPCROCA 2010: de Londras on Civil Partnership and (Marriage) Inequality”

CPCROCA 2010: de Londras on Civil Partnership and (Marriage) Inequality

CPCROCA 2010: Marriage Equality on Inequality

We are delighted to welcome this contribution from Marriage Equality to our blog carnival on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. More information on Marriage Equality is available here. This article has been adapted from the Legal Opinion of Brian Barrington BL furnished to Marriage Equality in 2009 in relation to the Civil Partnership Bill, 2009 (as it was then).

Whilst civil partnership may grant LGBT couples some rights heretofore withheld, what it will also do is further stigmatise same sex families as something different and not equal to heterosexual married families. It sends a message to the public that same sex relationships are less deserving of protection and support than heterosexual relationships. Marriage Equality is currently working on a marriage audit, listing all the legislative differences between civil marriage and civil partnership and at last count there are about 300 of them. However we will have to wait and see what happens with the tax and social welfare legislation before we can have a full picture.

Apart from the obvious equality concerns, however most worryingly is the situation for same sex couples who have children – and, above all, it is the children of those civil partners who will suffer as a result.  The legislation cuts and pastes some provisions of Irish family law to apply to civil partners. However there is a critical difference.  Rights and protections for children in Irish family law are taken out in this process.  This does not, of course, make the current situation for our children worse.  After all, the rights of the non-biological or social child of a same sex family are not recognised in Ireland at present anyway.  But it does show clearly how a conscious decision has been taken not to extend rights and protections to such children.  That, in turn, calls fundamentally into doubt the State’s commitment to the rights of the child.  Indeed, according to Brian Barrington BL, who examined the Bill in detail last year, and gave us his opinion, the failure to make proper provision to protect children in same sex families may run contrary to Articles 8 and 14 of the European Convention on Human Rights. Continue reading “CPCROCA 2010: Marriage Equality on Inequality”

CPCROCA 2010: Marriage Equality on Inequality

Perry v Schwarzenegger and the Overturning of Proposition 8

Yesterday the US District Court for the Northern District of California held, in Perry v Schwarzenegger, that Proposition 8 (wiki) was incompatible with the US Constitution. Proposition 8 was a constitutional amendment, passed in November 2008 (on the same day as the US Presidential election), which declared that marriage in California was limited to the union of a man and a woman. In Perry the Court held that Proposition 8 violated the federal due process and equal protection clauses and was therefore unconstitutional as a matter of US law. All state constitutions in the US are subordinate to the federal (US) constitution in federal matters including federal civil rights protection. Therefore Perry concerns compatibility with the US Constitution of such laws that limit marriage to opposite-sex couples and has potential implications far beyond Proposition 8, partially explaining the enormous interest in the decision. In this post I want to just briefly outline the reasoning in the case and reflect on what significance, if any, it might have for our forthcoming Supreme Court case of Zappone & Gilligan v Revenue Commissioners (High Court judgment). This acts as a timely precursor to the blog carnival on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 that we are holding on HRinI later this morning.

Continue reading “Perry v Schwarzenegger and the Overturning of Proposition 8”

Perry v Schwarzenegger and the Overturning of Proposition 8

The De Facto Same Sex Family and Irish Law

The recent European Court of Human Rights (ECtHR) judgment in Schalk and Kopf v. Austria has been much commented upon in the last while (see here, here, here and here). In Schalk, the ECtHR found that there was no violation of Article 8 or Article 12 (alone or in conjunction with Article 14 of the European Convention on Human Rights) where a state did not provide for same-sex civil marriage.  However, the point of this post is to examine the decision of the ECtHR for the possible impact this may have on the concept of de facto family in Irish law, particularly as applying to same-sex couples. Continue reading “The De Facto Same Sex Family and Irish Law”

The De Facto Same Sex Family and Irish Law

LGBT Pride: 2009-2010 in Review

This weekend the streets of Dublin will be filled with the 2010 L(esbian) G(ay) B(isexual) T(ransgender) Q(ueer) Pride parade—the culmination of weeks of cultural and other celebrations for Dublin Pride 2010. Indeed, all summer long there will be Pride festivals and parades in towns and cities all over the country: Cork, Waterford, Limerick and Sligo being the largest. In this post I want to reflect on the year in LGBT rights in Ireland and a little on Pride itself.

2010 has not been a terrible year from an LGBT rights perspective. There have been three very significant developments, all of which we have considered in some depth here on HRinI. The first is the continued passage of the Civil Partnership Bill 2009 through the Oireachtas. This Bill will create a new legal status of civil partnership, available only to same-sex couples, and carrying with it many (although not all) of the same rights and obligations as marriage. It will also allow for some default obligations and protections in cases of both opposite-sex and same-sex cohabitation where there is neither a marriage nor a civil partnership. Although the Civil Partnership Bill 2009 will not, when introduced, answer the calls for substantive equality between families based on an opposite-sex couple and families based on a same-sex couple, it will go some way towards answering the immediate and real needs of same-sex couples and in that sense is quite significant. Continue reading “LGBT Pride: 2009-2010 in Review”

LGBT Pride: 2009-2010 in Review