The Irish people go to the polls today to vote on the proposition that the following sentence should be added to the section of the Irish Constitution entitled “The Family”:
Marriage may be contracted in accordance with law by two persons without distinction as to their sex.
If this referendum passes, and the constitution is amended, Ireland will be the nineteenth country in the world to redefine marriage as a legal institution, and the first one to do so by referendum.
Because the campaign for a change has framed this vote as being about equality and justice, it is likely to succeed. Yet as the vigorous ‘no’ campaigners have the put the case for defending an understanding of marriage in law as a fertile union for the welfare of children, the gap has narrowed considerably — as happened in France when the Manif Pour Tous managed to create a genuine debate.
A year ago support for legalising same-sex marriage in Ireland was close to 80 per cent, but it’s no longer as clear. An Irish Times/Ipsos poll puts the ‘Yes’ vote at 58 per cent, and ‘No’ at 25 per cent, while other surveys have given the ‘Yes’ vote 69, 63 and 53 per cent respectively. In short, there’s been a significant rise in the number of undecideds. The more people are given a chance to think and discuss, the more they turn against the idea.
And they realize that SSM is being pushed on the basis of a succession of myths. Here are the ten most common.
Myth 1: It’s about love
It’s really not. The Irish State isn’t in the business of licensing the private lives and loves of individual adults. It doesn’t care whether people love each other or not, which is one reason why there is no mention of love in the Irish Constitution, and it certainly doesn’t cheer on people because they say they love each other. In fact, the Irish State doesn’t care why people marry at all; the Law Society’s Law Reform Commission 2001 report on Nullity of Marriage says, “Irish law regards the motive to marry as irrelevant”, and a marriage cannot be declared void because one spouse “did not love or had not the capacity to love the other”.
Rather, the State protects and promotes the institution of marriage, constitutionally recognising it as the foundation of the family, because it cares about children being raised in what is (all other things being equal) the best possible environment for them. The state has an interest in the way children are raised, not in attachments between adults. The drive to redefine marriage as an adult-centred arrangement are, whether they realise it or not, trying to give the State power to regulate private relationships. Recognising SSM doesn’t increase love, but by separating marriage from procreation it makes the future much worse for children.
Myth 2: It’s about equality
The word “equality” has been hijacked by yes-vote advocates, allowing them to paint opponents of marriage redefinition as opponents of a key principle of western liberal society. Yet Article 40.1 of the Irish Constitution already recognises all citizens as “equal before the law”. Equality in Irish law means treating identical things in identical ways and different things in different ways, such that the State in its enactments can have “due regard to differences of capacity, physical and moral, and of social function”.
Nobody is saying that loving committed relationships are without value, but there is an obvious difference between loving committed relationships that are primarily about adults and loving committed relationships that are primarily about children, and are consequently recognised by the Irish Constitution as society’s fundamental and natural group units: only an opposite-sex couple can naturally procreate.
And SSM doesn’t make marriage “equal” for gay and straight couples. It redefines marriage so that it’s no longer about either. In other words, it reduces and eviscerates marriage, so that it no longer means what it has always meant. That’s not a victory for equality.
Myth 3: It’s about human rights
There is no internationally recognised right to marry someone who is not of the opposite sex. The European Court of Human Rights has explicitly stated, most recently in 2011, that while 10 of the Council of Europe’s 47 states had at that point opted to treat same-sex marriage as a right within their national boundaries, nothing in the European Convention on Human Right’s sections on marriage or the family “impose an obligation on Contracting States to grant same-sex couples access to marriage”.
This ruling, in the case of Hämäläinen v Finland, was conspicuous by its absence from the Irish Human Rights and Equality Commission’s Policy Statement on Access to Civil Marriage, as were the decisive aspects of the previous year’s Schalk and Kopf v Austria.
In the 2010 case, the court recognised that previous judgments ruled that the ECHR “enshrined the traditional concept of marriage as being between a man and a woman” and said while at that point 6 of the 47 convention signatories had opted to redefine marriage, these decisions were unrelated to the human right the signatories had recognised in the aftermath of the Second World War.
In view of how few European states had opted to change their civil understanding of marriage, the court explicitly rejected arguments that article 12 of the ECHR should be read “in the light of present-day conditions” as obliging member States to provide for access to same-sex marriage.
SSM is not a human right. It is a claim that marriage should be redefined.
Myth 4: Opposing SSM is akin to racism
The many black Americans who played a decisive role in opposing marital redefinition in California, and who have generally been less enthusiastic about SSM than other US ethnic groups, would find this a deeply offensive claim. Yet it’s oddly common. To oppose marriage definition is somehow made equivalent to Jim Crow laws in the 1950s banning interracial marriage.
The real similarity, however, is between SSM and the Crow laws themselves. Both are or were attempts to make marriage something it isn’t. It has always been a key principle of marriage in the western world — reflected in human rights charters — that any man can marry any woman, if both are eligible and free to marry.
That’s why, in 1967, the US Supreme Court struck down laws restricting marriage on racial grounds as unconstitutional. The reason given by Chief Justice Warren, concluding the court’s ruling, was that because marriage is a biological and procreative institution, “fundamental to our very existence and survival”, marriage mattered too much to be constrained on so arbitrary and meaningless a ground as “race”.
The same ruling, of course, would exclude same-sex marriage. Arguments that marriage isn’t at heart about children are, in effect, arguments against that Supreme Court decision.
Myth 5: Gay people want this
Only a small number of gay Irish people have spoken out to oppose marital redefinition, generally to widespread derision, but it seems unlikely that Ireland’s gay people are more homogenous and less diverse than British ones on this issue, or any other. When leading pollsters ComRes surveyed 10,000 British people on this issue, a quarter of the gay respondents said they were against marital redefinition and another quarter said they didn’t care about it.
Only slightly more couples – 1,409 – had same-sex weddings in the first three months of them being legal in Britain than the 1,227 who celebrated civil partnerships in the first three days of the scheme, with a mere 95 same-sex weddings taking place in the first three days of same-sex marriage. Gay couples have shown little enthusiasm for same-sex marriage in other countries where marriage has been redefined, with divorce rates in Belgium being far higher among married same-sex couples than among married opposite-sex ones.
Myth 6: It will only affect gay people
Ireland’s Constitution sees marriage, as traditionally understood, as the basis of the family, and article 7 of the United Nations Convention on the Rights of the Child, which Ireland signed in 1990 and ratified without reservation in 1992, says that a child has “as far as possible, the right to know and be cared for by his or her parents”.
Abandoning the notion that Ireland aspires to be a society where children should ideally be raised in families where their mother and father are committed to each other is something that over time will affect numerous children, regardless of their sexuality.
Others will be affected through being forced to accept that marriage is other than what they believe it to be, with cases like that of Belfast’s Asher Bakery and Dublin’s Daintree Paper providing grim warnings of this. “Don’t like gay marriage? Don’t get one” has become “Don’t like gay marriage? Then stand by why we try to use various legal and social tools to drive you out of the public square.”
Expecting caution and charity on this seems a lost cause when politicians and yes-vote campaigners have condoned the politicisation of such hitherto neutral instruments of state as Ireland’s police force, and when the Irish wing of Amnesty International, an organisation founded to support ‘prisoners of conscience’, seems to show no interest in the conscience rights of those whose views might differ from those of its director. Voting yes only makes sense if it is acceptable for schools and marriage advisory bodies to have to choose between ditching their religious ethos or shutting down, and for ordinary people to be hounded out of their jobs.
Myth 7: It’s not about children
But it is – even though they have been silenced in this debate. Even as a simple matter of law the referendum is clearly about children. Yes-voting UCC constitutional law lecturer Dr Seán Ó Conaill explains that it’s “complete nonsense” to claim otherwise, and that those who say so are “patently wrong”.
The nature of article 41 of Ireland’s Constitution means this is inevitable, he says, since the Irish State understands the family as the family based on marriage, and changing how the State understands marriage must change how the State sees the family, which has to have consequences for children, especially since all Irish family law is read by the courts through the prism of the Constitution.
The implications of a yes vote for Irish family law are endless. It is entirely possible that a changed constitution may have serious repercussions for such issues as surrogacy and adoption law. How future courts will interpret constitutional changes is notoriously difficult to predict. But one thing is for sure: the Irish state will no longer regard a child having a mother and father as an ideal to be strived for. And given that law teaches culture, that message won’t take long to permeate.
Myth 8: Marriage isn’t being redefined
Ireland’s Referendum Commissioner, Judge Kevin Cross, has sown confusion on this point, saying the referendum won’t redefine marriage just two days after saying it was “a matter of nuance and a matter of opinion” whether it would do that. In fact, Ireland’s legal system has already in 2006 addressed the issue of whether the enabling of marriage between two people of the same sex would do this. In the case of Zappone and Gilligan v Revenue Commissioners, Ireland’s High Court ruled that “the definition of marriage to date has always been understood as being opposite sex marriage”, and said the plaintiffs were asking the court “to redefine marriage to mean something which it has never done to date”.
Marriage differs in slight ways from society to society, but it has always been more or less universally understood as the institutional reflection of the natural reality that it takes a man and a woman to produce a child. People sometimes claim that marriage used to be about property, but even when it looked like it was, it was really about where property went after people died – it involved inheritance and children.
Myth 9: This is about civil laws resisting religious pressure
As Timothy Radcliffe OP has said, there is something “heartening” about support for same-sex marriage, as it “shows a society that aspires to an open tolerance of all sorts of people”. But it is important to “resist the easy seduction of the obvious”, he explains elsewhere, for “the Catholic Church does not oppose gay marriage. It considers it to be impossible.”
When Ireland’s bishops have spoken out to oppose the referendum, they have simply been restating what the Catholic Church has always believed to be the natural law and the teaching of Jesus Christ and the apostles.
They’re not imposing a view. They’re articulating what the law, reflecting culture, has always understood. The debate is not about whether the state’s definition of marriage should resist the church meaning — it already does that. It’s about whether it is a good idea for the state to redefine marriage so that it has another meaning.
You don’t need to be Christian to be concerned about the state engineering a social institution so that it no longer reflects culture.
Myth 10: If you support marriage you should vote yes
If something is threatened, you don’t protect it by giving something else the same name. If there was a tea shortage, nobody would be fooled if you renamed coffee ‘tea’ and announced that the shortage was over.
In no country where SSM has been introduced has marriage been strengthened. Marriage rates have continued to fall, and divorce rates to rise.
It is not for nothing that lawyers and others have expressed concerns about what the marriage referendum might lead to. Marriage is an institutional expression of a biological reality – giving anything else the name of marriage would formally reject the idea that our biological reality isn’t, as the US Supreme Court said, “fundamental to our very existence and survival”.
SSM not only fails to strengthen the institution, it considerably weakens it by emptying it of meaning. Who, at the end of the day, wants to enter an institution that is merely a contract between consenting individuals, that has almost nothing to do with fidelity, permanence or children?