I welcome the Minister for Justice, Deputy Frances Fitzgerald. Before Committee Stage commences, I would like to deal with a procedural matter concerning Bills to amend the Constitution. The substance of the debate on Committee Stage concerns the wording of the proposed constitutional amendment, which is contained in the Schedule to the Bill. The sections of the Bill are merely technical; therefore, in accordance with the long-standing practice, the sections are postponed until consideration of the Schedule has been completed. Is that agreed? Agreed.
Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015: Committee Stage
Amendments Nos. 5 and 6 in the name of Senator Rónán Mullen have been ruled out of order.
On a point of order, having checked it with the Clerk, Ms Deirdre Lane, just now, I understand the procedure whereby an amendment to a Bill is ruled out of order is that a recommendation comes up from the Bills Office, goes through to the Seanad Office and then on to the Cathaoirleach for a ruling. In this case, it came to the Leas-Chathaoirleach to rule it out of order. I understand no legal advice was obtained in the course of that decision being arrived at. You are not, of course, obliged to seek legal advice. As a legal man, I ask you to reconsider this decision because the amendments that are proposed to be ruled out of order are central to the public debate about this referendum, namely, the question of whether redefining marriage in the way proposed will have a knock-on constitutional impact on any attempt to regulate matters, for example, in the areas of adoption or assisted human reproduction, in such a way as to seek to ensure as far as practicable that a child is never deprived of the right to be brought up by his or her own father and mother or by a father and a mother. The amendments were carefully thought through. A lot of legal advice was sought. They are central to the question of what the precise impact of the proposed referendum change will be. They are not vexatious amendments and are not-----
The Senator raised a point of order and I allowed him a lot of latitude in making his point. I have signed the letters in good faith and made my decision that the matters raised were outside the scope of the Bill and I will stand by that ruling. I have given the Senator three or four minutes to make his point, which normally would not be allowed, because he feels strongly about it. The point he raised initially was not, in fact, a point of order. That is why I gave him a bit of latitude, but we will have to move on now. That is my ruling.
May I propose the amendments again on Report Stage? Is it possible for the Leas-Chathaoirleach to engage in separate consideration?
Certainly, on a point of procedure, that can be done and I will reflect on it and may come to the same decision. What has been done at this stage is done and if the Senator re-enters the amendments, I will have to look at the matter again. I am not going to pre-empt what might happen on Report Stage.
I am grateful for the courteous and careful way in which the Leas-Chathaoirleach has allowed me to express my major concern about this issue. It has the potential to bring the Seanad and the officials who work in these Houses and their decision making under public scrutiny in a way that will not reflect well on them. These issues are going to be central to the public debate and if it is out there that it is not even possible to amend the Constitution proposal, there is going to be nothing but contempt for the procedures of these Houses.
I appreciate that the Senator feels strongly about the issue. We are on amendment No. 7 in his name. Amendments Nos. 1, 2 and 7 form a composite proposal and may be discussed together, by agreement. Is that agreed? Agreed.
Tairgim leasú a 7:
I leathanach 7, idir línte 3 agus 4, an méid seo a leanas a chur isteach:
“5 Ní cead alt 4 den Airteagal seo a agairt chun oibriú Airteagail 42 nó 44 nó na saoirsí agus na cearta a admhaítear sna hAirteagail sin a thoirmeasc nó a rialú nó a bhac.”.
I leathanach 7, i ndiaidh líne 6, an méid seo a leanas a chur isteach:
“5 Section 4 of this Article shall not be invoked to prohibit, control, or interfere with the operation of Articles 42 or 44 or the freedoms and rights recognised in those Articles.”.
I move amendment No. 7:
In page 6, between lines 3 and 4, to insert the following:
“5 Ní cead alt 4 den Airteagal seo a agairt chun oibriú Airteagail 42 nó 44 nó na saoirsí agus na cearta a admhaítear sna hAirteagail sin a thoirmeasc nó a rialú nó a bhac.”.
In page 6, after line 6, to insert the following:
“5 Section 4 of this Article shall not be invoked to prohibit, control, or interfere with the operation of Articles 42 or 44 or the freedoms and rights recognised in those Articles.”.
Amendment No. 7 provides that section 4 of this Article shall not be invoked to prohibit, control or interfere with the operation of Article 2 or Article 44 or the freedoms and rights recognised in these articles.
Much that is very uninformed has been said about the issues that arise in terms of freedom of conscience when it comes to the provision of various services by people who have a sincere view, which may be political or religious, about the importance of marriage between men and women as being fundamental in our society from the point of view of securing as far as possible the best interests of children. Sometimes issues arise whereby people find themselves unable to act in conscience in accordance with what they are asked to do.
In recent days Senator Thomas Byrne sought to draw a distinction with regard to the controversy involving Ashers bakery in Belfast, which is run by people who have a Christian commitment to the importance of marriage. I am not concerned as to whether they are religiously motivated or otherwise. They were asked to produce a cake which would have a political message supporting gay marriage on the icing. They refused to do so and are now being prosecuted by the equality people in the North. There is considerable disquiet among many people about the intolerance which underlies such a possibility. We must ask whether anything we are doing here in redefining marriage in the Constitution could have a knock-on effect whereby this kind of spectre would raise its head.
In recent days in Drogheda a printing company declined to print a menu for a civil partnership event, as the people involved felt it would draw them into publicly supporting something with which they did not actually agree. I regard myself as a pragmatic person; if I were in their situation I would not necessarily be bothered, but that is not what tolerance is about. Tolerance is not about facilitating only those people whose point one actually sees. Tolerance is about facilitating the point of view of the person whose views one might actually despise. It is really important that we consider the operation of anti-discrimination laws, which are in themselves good but which may have unforeseen and perhaps undesired consequences if we do not seek to balance them in some way so as to protect people's right to live in accordance with their convictions.
The articles I seek to protect from any unforeseen interference with their operation by virtue of this proposed change should the referendum pass are articles which protect freedom of religion and religious-run institutions but also protect the rights of parents as educators. I seek simply to ensure nothing changes in the operation of these articles and it is a very conservative amendment in this sense as I do not seek to create any new rights in the Constitution. I want to ensure nothing changes merely by virtue of this referendum. This is a respectful approach to take.
We have not had a debate about how things might change if the referendum is passed. We have not had a debate about what will be tolerated in schools. Take, for example, a school where a teacher wishes to teach about love, care and respect for people's private lives and, because of the school's ethos, the teacher's personal conviction or just his or her desire to teach what he or she believes to be true, that - all things considered - a child deserves to have a father and a mother and this is what we should try to promote as a society. Will anything in the proposed constitutional change be invoked to prevent any future vindication of this teacher's right to teach what he or she truly believes to be true, what the employing organisation truly believes to be true and what many of the parents who send their children to that school truly believe to be true? All I am saying in the amendment is that nothing should change, and this is the only responsible thing to say considering the Minister has not told us what will change. She has not told us that nothing will change as a result of the amendment with regard to what goes on in schools and education. If she thinks anything will change, she has not told us what may change. If the Minister is sincere, as the Government and supporters of the amendment keep saying, that this is only about recognising love and relationships between two adults of the same sex and nothing more than this, she should not be afraid to accept the amendment.
There remains a problem with the amendments that have been ruled out of order, which is not in the best interests of the Minister or the Government, as she has just created an important political controversy about the amendment. Not only am I prevented from seeking to vindicate the right of a child to a father and a mother as far as practicable within the context of a new definition of marriage but the Minister is prevented from giving the necessary reassurances that this is not necessary. If the Government has the courage to debate this issue directly with opponents of the referendum in the weeks ahead, I hope the Minister will have a better answer than I have received so far. It will not go down very well with the Irish people to say we will not discuss the question of whether the amendment will impact on a child's right to a father and a mother because the Seanad ruled it out of order after a recommendation from the Bills Office which went through the Seanad Office and on which the Leas-Cathaoirleach ruled. It will not sound very good to the people of Ireland that the debate has been curtailed to this extent. There is a serious question to be asked about whether the proposed amendment has an impact on the rights of educators. Could somebody lose his or her job? Would people move a step closer to losing their job if the constitutional amendment passes without the insertion of the clause I propose?
To return to the providers of services, people here may not sympathise with those who have a conscientious objection. This issue was ventilated to some extent during the civil partnership legislation debate, which was disgracefully handled because the debate was guillotined to facilitate the Green Party having a press conference on the Friday in order that its members could tell the public how great they were in introducing civil partnership and full and thorough debate in Leinster House of the issues was of much less priority for the then Fianna Fáil and Green Party Government, unfortunately.
There was a lot of debate.
The debate was guillotined, which was unfortunate. Similar issues arose with regard to conscientious objection. Nobody should have any sympathy with anybody who would like to discriminate against a person on the grounds that he or she is gay. It should be and is against the law. Discrimination on the grounds of sexual orientation should be outlawed. There are exceptions to pretty much all of the prohibited grounds for discrimination simply to secure the common good. For example, a person employing somebody to look after his or her elderly parent is entitled to seek a person of a particular sex. The law would be a nonsense if exceptions to reflect important realities were not allowed.
As a general principle, it should always be immoral and unlawful to discriminate against a person on grounds of his or her sexual orientation. However, refusing to provide a service in circumstances which one perceives to link one with something with which one conscientiously disagrees is not the same thing. This is why it is a real issue to ask where is the right to free expression, the constitutionally protected right to freedom of conscience, not just the freedom to believe certain things but the freedom to practise and live out one's beliefs. This freedom must be limited in accordance with public morality and order. For example, if my sincere beliefs put at risk another person's rights to safety or life, I am not, and should not be, allowed to express them. However, a person's right to full public recognition of his or her relationship could, in certain cases, hold somebody's deeply held principles up to scrutiny in a way that would embarrass that person, compromise his or her business or affect his or her personal or business relationships. If two people are in business together and one of them has a sincere disagreement with the redefinition of marriage, not because he or she is opposed to anybody's sexual orientation but because he or she has a certain idea of what marriage is, means and does for society, is there room for this person or that business in our new, tolerant Ireland?
Surely, there can be a way to balance a person's right to public recognition of his or her relationship, given that the law will provide for it if the referendum is passed, with another person's right to refuse a service based on his or her particular views, with the best will in the world and with good wishes to the prospective customer? This is what happened in the Drogheda case. The printer in question had previously dealt with the people seeking the service. However, when he realised he was being asked to produce invitations for a civil partnership event, he and his business partner felt it would impact in some way on their need to be publicly consistent with what they believed. I presume that the issue was that some printers will always print their name on each document they print. It is not a State printing service and this is not a communist society in which there is a monopoly.
The person was a long-standing customer.
The printer went privately and respectfully and offered his hand and it was not taken. Can we not find a way to accommodate differences of opinion? Is that not what all the great liberal traditions are about, if we consider the separation of church and state in the American tradition? Is it not about allowing people to go their own way unimpeded by the higher force of law except where it is absolutely necessary to secure the common good? I am very concerned that there is a new intolerance in Ireland. It is almost as though the people running the country, in journalism, the media, politics and in the Government, have a memory of when issues were very suffocating because only one point of view was publicly allowed, and now they are determined that their point of view will be the only one that is publicly allowed. It is a very adolescent, juvenile way to craft the new Ireland.
The new Ireland should be about, to use a phrase that does not come naturally to me, letting 1,000 flowers bloom. This includes the flower that is planted by the person whom you and I think is a bigot and whom I might think is unnecessarily scrupulous, more to the point in this case, about his need to act in accordance with his beliefs in a given situation. Where is the tolerance? Why is there the desire to ram all this down people's throats? There is a fair question to be tried, to borrow a legal expression, whether the redefinition of marriage as proposed, if it goes through, will be invoked further to impact on the conscience rights of certain people. We will possibly find that such people are more likely to be Bible Christians than Roman Catholics, and this says much about the pragmatism of Roman Catholics. However, they might not be people of faith at all, and this should not worry us, because conscience goes beyond faith. There is a fair question to be tried as to whether the redefinition of marriage, as proposed, could be invoked in future court cases.
Even if the referendum goes through, it will be very interesting to see what the courts do, given the constitutional provisions around freedom of conscience and the freedom of religious institutions, and the rights of parents as primary educators, from which the right to denominational schooling flows. These issues are not going to go away and will not be removed from the Constitution by the amendment. However, there is an uncertainty as to how the amendment will operate when it comes to their interpretation in the event of future legal dispute. If the Minister, as she and her Government say, simply wants to affirm the loving relationship between any two adults regardless of sex, to give public recognition to them and to let certain administrative and social benefits flow from that, fine. However, the Minister can do it, and reassure many people in the public that there are no implications for other people's freedoms, by accepting amendment No. 7. However, she will still have a problem regarding the amendments that have been ruled out of order.
I would love if the Government would call my bluff and find out whether I would support the referendum if the Minister were to accept my amendments. The Government might be pleasantly surprised. Perhaps, the Government thinks its majority in the opinion polls is still strong enough for it not to bother with people like me or the people whom I represent. Although I do not know what the people will decide in the end, I will represent the people whom I represent. There are hundreds of thousands of good people in our society who love and respect gay people and respect their private lives and personal commitments but who have concerns about the marriage proposal. These concerns are all the greater because there are certain issues in doubt about freedom of conscience, the rights of educators and questions regarding adoption and donor-assisted human reproduction. We must return to those issues sooner or later. I look forward to the Minister's response.
While there are several responses I could give to Senator Rónán Mullen's various comments, I will leave some of those remarks to when we meet outside the Chamber on the campaign trail. The Senator referred to Articles 42 and 44 of the Constitution. Article 42 states that, "The State acknowledges that the primary and natural educator of the child is the Family" and that parents have the right to ensure children are provided with appropriate education. The first point of Article 44 is that:
The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
Then, it goes on to refer to the freedom of conscience issues to which my colleague, Senator Rónán Mullen, referred. The Senator's amendment puts forward a presumption that one amendment to the Constitution might impact on other articles in a negative way. This is simply a way of trying to put forward the fundamental arguments he has been making fairly consistently, namely, that the child has the right to a mother and father. The Senator makes the presumption that an amendment to the Constitution that is being put before the people and which has been checked and rechecked by all our legal advisers and our Attorney General might somehow impact other articles in a negative way.
The fundamental issue at stake is not the right of a child to a mother and father but the protection of a minority's right to marry by opening a civil institution. While we have all spoken about the issues of love, it is about the protection of a minority's right to marry by opening a civil institution, to be protected and to be able to become a constitutional family.
That is what the Government is proposing in this amendment to be put to the people by way of referendum.
All of the issues are interesting and are in the public debate in terms of what is happening, perhaps when people make choices to discriminate in terms of the provision of goods and services. They may be discriminating against people, in this case, in terms of their sexual identity. We already have equality legislation in place in that regard and that is not changing.
My colleague, Senator Rónán Mullen, speaks about unforeseen consequences from which he is concerned to protect us. I remind the House of the enormous unforeseen consequences arising from section 37 of the equal status legislation that we are still trying to get changed. In fact there were additional layers in terms of protecting the religious ethos, which in some ways is what I see the Senator is trying to do now, with additional layers of protection over and above what we already have. When there was such an effort a long time ago to add such additional layers, what were the unforeseen consequences? It had extraordinarily negative consequences for teachers, nurses, civil servants and others who participate in various forms of employment who were fearful of revealing their identity, including those with whom they are in partnership. We know about unforeseen consequences and the potential of negative impact, but that is what we are trying to change.
Do we have enough respect for religious ethos in the Constitution already? I argue that we do. Do we have it enough in our legislation? There is an additional layer we need to get rid of. I am absolutely in favour of the protection of religious ethos. However, I would prefer that someday we might change that first part of Article 44.
The Senator asked us to think about what would change if we put this into place. What will change? The people need to continue to reflect on this. A minority is oppressed and is unequal in terms of our Constitution because they do not have access. I am banned from the civil institution of marriage because of my sexual identity. If the referendum is passed they will become free and will become equal to heterosexual couples, who have the right to access that civil institution and marry. That is the fundamental consequence of this amendment if the referendum is passed. We need to keep that centre stage and I hope the people keep it centre stage.
I agree that we need to have some debates in terms of equality legislation, discrimination etc. and those who have freedom of conscience. I do not belittle this. I understand. As Senator Rónán Mullen knows, I have had a lot of training on what freedom of conscience means, but it is not ultimately about those consequences. What will change is that a minority will have access to what the majority already has access to.
I propose to respond to amendments Nos. 1, 2 and 7 together.
Amendment No. 7, the substantive amendment in the group, seeks to insert an additional clause in the Constitution that would explicitly provide that article 41.4, if passed, could not be used " to prohibit, control, or interfere with the operation of Articles 42 or 44". This additional clause would have the effect of limiting the constitutional effect of the proposed amendment of the Constitution. It would effectively be subordinate to Articles 42 and 44. At the same time it would prescribe how Articles 42 and 44 could be interpreted if they had to be read with reference to this provision.
Supreme Court case law, as Senators are very well aware, demonstrates that the court has over the years interpreted provisions of the Constitution in a harmonious and coherent manner. Article 44 gives robust protections for freedom of religion. These protections will remain in place. The general scheme of the marriage Bill which I circulated to Members of both Houses on 9 March and which will be introduced as a Bill in the event that the referendum is passed reflects these protections. It provides that nothing in that Bill, if enacted, would compel a religious body to recognise a particular form of marriage ceremony or a religious solemniser to solemnise a marriage in accordance with a form of ceremony not recognised by the religious body of which he or she is a member. However, the core proposal in this referendum is about making available to same-sex couples a right to marry that is not available to them at present but is available to opposite-sex couples. If the people approve this proposal in the referendum, this right will also need to be protected. I would be concerned at the implication of these amendments that there would be a hierarchy of rights whereby one person's rights to freedom of religion would always be superior to another person's rights to equality of participation in our society.
I am concerned, furthermore, at the explicit reference to Article 42, which addresses education and the rights of children. The proposed constitutional amendment is not about children or education. It is about marriage. It is misleading to seek to add issues into the equation that are not relevant to the aim of the proposed amendment.
Amendments Nos. 1 and 2 are technical amendments to reflect the presence of the proposed new clause inserted by amendment No. 7. For these reasons I cannot accept the amendments.
It is difficult to know where to start. I agree with much of what Senator Rónán Mullen said and with much of what Senator Katherine Zappone said. However, in all of this we need to be very mindful of the level of intolerance that there is among the gay ideological movement. I have used that phrase before and I have been criticised for it, yet this is all about ideology. I separate the case for individual gay people in loving relationships; they are deserving of every respect for that. However, now we are changing marriage and we are doing it without giving any consideration to the consequences of that for marriage.
I come from the perspective that children should be the main focus in all these issues. Adults, be they heterosexual, gay or whatever, are well able to look after themselves. There is a plethora of NGOs that cater for all sorts of adult interests, many of them extremely well funded and very professional in the manner in which they go about their business. There are very few, if any, that really champion the cause of children. I challenge those who might refute that by saying the silence of all those NGOs when we were debating in this House the most fundamental of all rights, the right to life, spoke volumes and still does.
I have tried to get Members of this House and others to support me in an all-party proposal that we will put condemning out of hand the issue of gendercide. However, I cannot do it. People who see themselves as champions of women's rights cannot support a motion that would outlaw and condemn an issue that is most diminutive of the status of women. That is that young babies in their mother's wombs are being killed for the reason that they are female. I think it is appalling, yet we cannot get consensus on it. People get caught up in all this ideology and we need to strip it all aside. We need to come back to being a tolerant and respectful society.
I know many people who are gay. I have the utmost admiration for them - they are brilliant people. Senator Katherine Zappone and her partner would be two of them. However, society needs to look at what is happening in all of this. I have been the victim of the intolerance coming from the other side. In my home town posters were placed stating "homophobic bigot" and "misogynistic bigot". I have been very consistent on this topic for at least the past decade and before, but primarily for the past decade because we have had many debates in this House on it. I have been consistent in what I have had to say and have not changed my views on it. Primarily they are driven by what I see as being in the best interests of children.
There is cause for reflection. A case such as that relating to Ashers Baking Company, which is due to be decided upon this week, should surely encourage those in government to stop and think about the conscience implications of redefining marriage. There have been many cases where individuals who have a genuine and conscientious objection to changing and redefining marriage or who express any interest in the protection of children have attracted a great deal of abuse and criticism and, in certain instances, even worse. I refer, for example, to Brendan Eich who was obliged to resign from his position as CEO of Mozilla-----
Will the Senator refrain from naming people in the House?
This is a well known case and the details of it are in the public domain.
That may be the case, but the individual in question is not a Member of the House.
No, he is not and he is no longer CEO of Mozilla either. Why is that the case? It is because he happened to support the Proposition 8 movement in California - a very liberal state in the United States - and gave $1,000 to support its cause of maintaining marriage as being between a man and a woman. Regardless of whether one agrees or disagrees with him, surely to goodness he was entitled to do as I have outlined. The list of those who subscribed and donated to the movement - I could provide the names of the many other individuals involved - was obtained and the individual to whom I refer was forced to resign his position as a result of the damage done by those who targeted his then employer. Last week, a business of which I have never heard before called Dolce and Gabbana - I may have pronounced the names wrong - made a pronouncement on its opposition to the definition of marriage being changed. Dolce and Gabbana, a gay couple who cannot be accused of being homophobic, expressed their view. It is a perfectly legitimate view and it happens to be one which I hold. Everyone witnessed the litany of abuse directed at them and the attempts to boycott their business. I do not think things of that nature should happen.
I agree with what Senator Katherine Zappone said about people working. Individuals who are gay should not feel any fear. They should be respected and should enjoy equal opportunities in the context of their career prospects. Those prospects should not be affected by their particular orientation. Most people in this country would fully accept that. We need to cut out the intolerance, but we must also remember that there is intolerance on both sides. I am aware of the case of a lady, Sarah Mbuyi, who worked in Newpark Childcare in Shepherd's Bush, London and who was dismissed last January when a colleague asked her about what the Bible taught in respect of homosexuality. When Ms Mbuyi responded, her colleague became upset and complained to their employer. As a consequence, Ms Mbuyi was sacked.
The Minister referred to a hierarchy of rights. Such a hierarchy is already in place. Freedom of conscience is subsidiary to the other rights. There is also freedom of religion. There is an observatory in Austria which monitors and tabulates instances of discrimination against Christians throughout Europe. There is generally a long list of such instances. Some of them may be subtle or not that strong but they show a clear bias against Christians nonetheless. I do not accept the Minister's argument when people who have a conscience and who harbour a certain view are not respected, particularly in circumstances where the relevant services are available to others. As Senator Rónán Mullen stated, a situation arose in this Chamber - I thought it was an appalling episode - when we debated the civil partnership legislation. I tabled amendments with regard to freedom of conscience for people of religion and those who are members of the clerical state who would obviously come at matters from a religious perspective and in respect of whom major questions would not arise in the context of this being a conscience issue for them. All of the amendments in question were guillotined in order to facilitate, as Senator Rónán Mullen correctly pointed out, the members of the Green Party going out to the plinth in order to take part in a photocall for the "Six One News". These things happen and they do not register on the radar. They should be exposed and those involved should be criticised.
Tolerance must be displayed by those on both sides. There must be freedom of expression. There is no point in people complaining here or in the media about the freedom people should enjoy. In that context, I refer to one of the recent atrocious incidents in France where several people were killed.
At the offices of Charlie Hebdo.
Yes. Such atrocities must be condemned outright. It was very interesting that a person who tweeted a particular message on the day after the attack and was taken in by the police. I do not believe freedom of speech is unfettered. We need to be careful, respectful and tolerant but that must be the case on both sides. The latter is not the case. I advise Members to go on Twitter and see what people are saying about Senator Rónán Mullen and me. I have been through this before and I am aware that one must ignore what is being said and carry on.
The Senator must tell me what is being said sometime. I never check Twitter.
Senator Jim Walsh to continue, without interruption.
People have been directing certain comments to me. The kind of abuse involved does nothing in the context of encouraging respectful debate on a matter which is very fundamental in nature. I completely accept that this is a fundamental issue for people who are lesbian or homosexual and I understand why that is the case. I happen to hold a different perspective and I am of the view that people who do hold an opposing view must be entitled to respect. That is not happening.
I ask the Minister to contemplate what I am about to say. I read an article many years ago in which it was stated that conscience is the only bulwark against the totalitarian tendencies of all states and that this finds recognition in the present German Basic Law, or conditions, which, to avoid a repetition of the totalitarianism of the Nazi period when the conscience of citizens was mercilessly crushed, insists that those elected to parliament shall be representative of the whole people, not bound by orders or instructions and responsible only to their conscience. The latter comes from Article 38.1 of the German Constitution and we would do well to be mindful of it. We are not being mindful of it and I become concerned when the Minister refers to a hierarchy. There already is a hierarchy in place and she is choosing to ignore it.
In the context of matters of conscience, people can be prosecuted. However, they should have the right to mount the defence that they are coming at particular matters from a conscientious perspective. The courts and our legal system in general should be well capable of determining whether what is involved constitutes prejudice or discrimination or whether it is a genuine matter of conscience for the individuals concerned. That is not an unreasonable proposition and it is one I would like to see being respected by those in government. I am afraid, however, it has not really been taken on board by the latter as yet.
The Minister has stated on a number of occasions that the scheme which goes with the referendum proposal makes clear that religious organisations will not be required to provide marriage ceremonies and so on. Nobody has suggested it should be otherwise. This is a hare which no one opposed to the referendum has raised during the debate. This is one example of how the people who are most concerned about this referendum proposal are not throwing out just any old argument. If they do not think something is an issue, then they do not say it. There is no exaggeration here. Legitimate questions are being raised about knock-on effects. I will kick myself if the referendum is passed and if the result is used as a way to cut across the freedom of religious bodies in the future. One simply does not know what will happen when the courts start interpreting constitutional and legal provisions in accordance with prevailing ideas. I do not believe the latter will happen, particularly in view of the existing protections in the Constitution. I mention this merely as an example and say to the Minister nobody has gone there and I do not believe she needs to do so either. Obviously, however, what she tells us is her own business.
Senator Katherine Zappone is one of the most articulate and reasonable people on the side which is proposing change in this instance. I have great respect for her. In a recent article in The Irish Times she invited me to debate the issues publicly with her. I would have absolutely no problem in doing so.
I enjoy any engagement I have with her and we agree on many issues. We have supported each other in the past on issues such as the dignity of women and the need to criminalise people purchasing the services of other people in prostitution, etc. I greatly admire her commitment on that issue. Nevertheless, I must insist on the justice of my position that equality is capable of being interpreted in many different ways. I see the position I am arguing for as very much about insisting on the equal rights of children to have the father-mother experience wherever possible and for that never to be deliberately interfered with. I see a greater need and onus on us legislators to legislate for children's best interests as they cannot speak for themselves nearly as well as adults. The children in question are yet to be born. There is a body of evidence about the value for children of the father-mother relationship, particularly in marriage. Even if there was not such evidence, there is a right to that experience.
The Minister argues in supporting the ruling out of order of the two amendments that this is not relevant. Will the Minister confirm that if in future it is proposed to legislate to restrict donor-assisted human reproduction to father-mother couples, nothing in this amendment could be invoked to render that legislative proposal unconstitutional?
I have another question for the Minister but I want to hear her address that point.
Freedom of religion is already dealt with in Article 44 of Bunreacht na hÉireann. Article 42 addresses education and the rights of children. As the Senators are well aware, the courts, including the Supreme Court, interpret the provisions to the Constitution in a harmonious and coherent manner. The proposal before us is about extending access to marriage to persons of the same sex. No change is being proposed to existing Articles 44 or 42, including those regarding freedom of conscience. We have had the Equal Status Act for a long time and schools can protect their religious ethos. That has been in place for 15 years and schools have continued to be able to educate children with respect to the religious context of the curriculum unhindered. I also have to ensure that same-sex couples would not be at risk of discrimination by somebody using a general conscience clause. There are exemptions in the Equal Status Act to protect services provided for a religious purpose, and that is how religious freedom is given expression in the Act.
The key point with regard to a change in a constitutional provision is well know from court practice, and it is that provisions in the Constitution are interpreted by the Supreme Court in a coherent and harmonious way. All provisions are examined when a court is deciding on particular issues. That is a key point. Supreme Court law demonstrates again and again that the court has over the years interpreted provisions of the Constitution in a harmonious and coherent manner. No change is being recommended whatever to the articles, including Article 44, which gives robust protection to freedom of religion, or Article 42. No changes are being recommended. We are not trying to change those provisions but we are inserting an extra right in the Constitution. Again I say Supreme Court case law demonstrates that the court has, over the years, interpreted provisions of the Constitution in a harmonious and coherent manner. That is the job of the Supreme Court when there is a constitutional challenge. It considers all the provisions.
The Minister has not answered Senator Rónán Mullen's question. This needs an answer if we are to stand back, consider the legislation and say we have done a good job. I remember former British Prime Minister Tony Blair - he may still have been in office at the time - being surprised that legislation introduced in Britain operated in a manner which he had not understood, particularly with respect to a religious community. He stated the community should have had the freedom to do whatever it was going to do but he was told that legislation had been passed which meant there could be no discrimination. On those grounds, he was told it must be accepted.
I hope what we are doing today and always is ensuring that all legislation passed can be considered later and seen to have worked for the community of which we are a part. We want to allocate the time, attention and the commitment to ensure the legislation is worthy of support. The Blair case I mentioned concerned adoption, with the religious body in question wanting to ensure that if a baby was to be adopted, it would go to a mother and father rather than a same-sex couple. Mr. Blair was told that this would amount to discrimination, and the Christian organisation in question could not discriminate on those grounds. That surprised Mr. Blair, who had not understood that in passing legislation he was depriving that religious body of ever being able to say that it could ensure the children being given to it for adoption would go to a mother and father rather than a same-sex couple. I am not arguing the case, but we must not let legislation go through without understanding its full impact.
I repeat what I have said. The proposed constitutional amendment is not about children or education but rather about marriage. It is misleading to seek to add issues into the equation which are not relevant to the aim of the proposed amendment. Senators are speaking about assisted human reproduction legislation or the children and families legislation but we are now legislating for rights that people do not have at present. That is the job of the Dáil and the Seanad. We are legislators and we are legislating for the rights that we have discussed in the course of the Children and Family Relationships Bill. In future, there will be legislation relating to assisted human reproduction. That refers to legal rights rather than constitutional rights. With regard to constitutional rights, there is no proposal to change any protection that people have with regard to freedom of conscience or religion. We are talking about extending the right to marriage to same-sex couples.
I am sorry to press the Minister, but I need to do so. The public deserves that she would address this more specifically, with the assistance of her officials. They are doing Trojan work, and I have noticed them here for the Children and Family Relationship Bill as well. They are working on many issues that are obviously connected to that extent. The officials have just moved chairs overnight.
It is all very well to talk about the difference between legal and constitutional rights but the Minister knows as well as I do and everyone else that what the Constitution is interpreted to mean affects the laws we can have in the country. It affects what legislative rights can stand and those which cannot. We also know that what is contained in a constitutional text is subject to interpretation by the courts. The Minister has correctly said these will be interpreted harmoniously. When something is added to the Constitution, the balance is changed by definition. I have asked the Minister for a specific answer and Senator Feargal Quinn is supporting me in that request. What would happen if a future Oireachtas proposed to change the provisions on donor-assisted human reproduction so as to require that it could only occur in the context of father-mother parenting?
If it were proposed that, in adoption decisions, an essential aspect of the best interests of the child would have to be the possibility of a father and mother, save in exceptional cases, would or could anything in this referendum proposal render such a change unconstitutional? Is it the Minister's view that it could not have any impact and the issue would be determined in the same way as if marriage had not been redefined?
It is the Supreme Court which makes decisions in respect of the provisions of the Constitution. The amendment is about marriage and access to marriage for same-sex couples, not parentage or children. The regulation of access to donor-assisted human reproduction will be a matter for the Department of Health and will be decided in the best interests of the children to be born. It will not be based on marital status or the sexuality of the intending parents. I will not digress into a discussion on current adoption laws because that is a separate issue. We have already discussed who may access adoption under current law and the position is clear in that regard.
The European Court of Human Rights has also taken a clear position on the rights of the child and the issue of limiting access to adoption. The court had much to say about these matters and Ireland is subject to the decisions of that court. I will not digress because the constitutional amendment is about access to marriage, not parentage, parenting or children. As I indicated, regulation of access to donor-assisted human reproduction will be a matter for the Department of Health, which will regulate the matter in the best interests of the children to be born along the lines I outlined.
Senator Rónán Mullen knows better than anyone that when one inserts a new constitutional provision, it is for the Supreme Court to interpret the balance between different constitutional provisions. People are being asked in the referendum if they want to extend the right to marriage to same-sex couples. If this proposition is accepted and a new clause is added to the Constitution - the Government's proposition would not result in any deletions to the wording of the Constitution - it will be for the Supreme Court to interpret and decide on the balances in the Constitution at a future point.
I listened to Senator Rónán Mullen's arguments, which move beyond his amendment. The Senator's proposal makes reference to Articles 42 and 44 of the Constitution which relate to freedom of conscience and whether it is adequately protected in legislation on equality and non-discrimination. The Minister has responded to this point several times and while her answer may not be what Senators wish to hear, she answered the question very well, so much so that Senator Rónán Mullen has made another argument on an issue that goes beyond Articles 42 and 44. He has raised the issue of children, human reproduction, etc., as distinct from freedom of conscience and what happens with a family's right to education. The Minister is correct not to entertain Senator Rónán Mullen's latest arguments because they go beyond his amendment.
The Minister is contradicting herself in a way by arguing that this issue will be left vague and uncertain because we do not know what the Supreme Court will decide. She chose her words carefully when she stated the referendum was about access to marriage. My point, however, is that she did not say it was only about access to marriage. I have access to a legal opinion on this question to the effect that it would be unconstitutional to give preference to mother and father relationships in the circumstances I described if the amendments I have proposed and which have been ruled out were not accepted. Does the Minister have a legal opinion to the effect that I am wrong?
To return to the issue of conscience, Senator Katherine Zappone is keen that we do not speak too much. She is technically correct because we have been speaking for some time about matters, the substance of which was primarily dealt with in the amendments that were ruled out of order. I urge her, as a legislator, to consider the fact that even having this discussion speaks volumes about the decision to rule the amendments out of order, particularly in light of my comment on the legal opinion that I have to the effect that it would be unconstitutional to give preference to father and mother relationships if the amendment I proposed is not made. This is a serious matter and one which the Senator should seriously consider. Clearly, this is the scenario the Minister wants to bring about, which is the reason she stated the referendum was about access to marriage but did not state it was only about access to marriage. There are knock-on effects, and my amendment seeks to ensure the only issue the referendum will be about is recognising the relationships in question. Without the changes I have suggested, it will be about very much more than that. The Government will clearly deny this and will not accept it publicly for political reasons.
On the freedom of conscience issue, let us imagine a scenario, albeit one in which I will never find myself. The fact that I am a politician may, by definition, mean that I am the pragmatic type of person who would print whatever people wanted to get printed. However, I respect the bona fides and freedom of expression rights of people who see things differently - in other words, people who, like me, believe in the right of a child, wherever possible, to have a father and mother in his or her life and, for that reason, value the institution of marriage, as currently defined, and would be uncomfortable about being seen to endorse anything else, even if it should be provided for legally. Is there room for such people in our society?
As I stated, people who have a conscientious objection are likely to be what one would describe as Bible Christians, Muslims or people with no religious conviction. It should not matter to us.
Muslims believe in polygamy.
The Senator can always be relied on to say something interesting, if perhaps not relevant.
It is totally relevant.
We know that some Muslims hold that view. It is all about sharing the love.
Assuming the referendum passes, let us take as an example the case of a small business which is asked to provide a particular type of catering service that would have the couple who own the business assume a hands-on role at a celebrity same-sex marriage. If the couple were to decide they preferred not to provide the service because they have a particular conviction about what some people view as the traditional definition of marriage, would their decision be discriminatory on the gender ground or the marital status ground in the new dispensation? It is hard to imagine how they could be said to be discriminating on the marital status ground because they are not refusing to provide a service on the basis of marriage but instead do not want to be seen to endorse a particular type of marriage. In that case, would it be discrimination on the gender ground because two people of the same gender are involved? I presume the Minister and her officials have thought through all of these issues. What would and should happen to the couple? Should they be prosecuted by the equality authorities on the gender ground or the marital status ground?
What kind of penalty would they be subject to? Would that situation be affected by this referendum? That is what I am asking. This is a real-life scenario, involving a small business, a catering service, and a same-sex marriage ceremony and related celebrations. They wish the best to those people. They say, "The best of good luck to those people, but we have a different view and we would like not to be involved in the provision of that service. There are plenty of other service providers. We are willing to forgo the business because we want to honour the need to be publicly consistent with what we actually believe. Whether or not it is a religious belief is none of anybody's business. It is our belief. It is a belief that has been supported for a long time, and continues to be supported by many people, that there is a social good in marriage being defined as a man-woman relationship. We do not wish to push that down anybody's throats, but we do not want the contrary to be pushed down ours." What should happen to those people in that real-life scenario, in the Minister's view, what would happen to them and what change would this referendum make to what would happen to them if my amendment is not accepted?
The area of freedom of conscience warrants more from the Minister than sticking to the script. It is an issue. She knows that it is an issue. As Minister for Justice and Equality, she has a particular responsibility in the area. We have seen, in Britain and in other countries, situations in which Catholic adoption agencies that were doing good work had to close. What will happen here in that regard? What will happen in regard to marriage guidance counselling, which some Catholic groups organise and which is often run primarily by lay people? What will their position be? What will the position be on pre-marriage courses, which are very necessary to prepare people? One of the great failures of the State has been the failure to provide some architecture to support marriages that run into difficulties in order to encourage people to get over those difficulties, with the intention of trying to save the marriage. We are good at giving support, which I am not condemning, to assist people in breaking up in a more harmonious way and to take the conflict out of it. I welcome that, but surely we should be inclined to more constructive, preventative measures.
What is the Minister's view on those issues, assuming this is passed? Does a business such as the one we are discussing have a choice between closing down and abrogating its conscience? Or do they have the defence - which would be genuine, as most people, regardless of which side of the fence they are on in this debate, would agree - that they have a conscience issue in relation to it? I would like the Minister to answer that very specifically.
I have already made it clear that Articles 42 and 44 stand. Obviously, we have the equal status legislation. It is remarkable. We have a religious ground.
I am sorry, but I did not catch that.
Under the equal status legislation, we clearly have a religious ground. It is always open to people to take cases. Senator Jim Walsh is asking me to comment on a different piece of legislation, but I will just say that clearly there is a religious ground on which people can take a case if they feel they are being discriminated against. If any of the scenarios he described were to emerge, clearly, there is an equal status Act. The religious ground has featured very little to date, in fact, which is interesting. It suggests that there is little evidence in practice of the providers of goods and services being compelled to provide goods and services against their will. That is the reality. We have legislation and we have constitutional protection for religion and for freedom of conscience, and in this referendum the people are being asked to extend the right to marriage. The Supreme Court will interpret in a harmonious way, as it always does, the various provisions of the Constitution. I have nothing further to add.
The conscience clause is nonsense. It is like saying that in the United States of America one could have a conscientious objection to marriage between a black person and a white person. One might think that, but it should not be part of domestic law. The domestic law should be equality for everybody. I would have thought that was self-evident. I would say that with regard to the case in Northern Ireland, the people who went to the bakery and asked the owners to put "Hurray for gay rights" or whatever it was on a cake were being deliberately provocative. They were creating a stink and they were rather foolish to do so. If I were getting married, I would not go near a homophobe. I certainly would not get my hair done in a hair salon where they were objecting to gay people. They would fry the skull off one. I would not give them the bloody business of printing the invitations. This is just provocation. There are a small number of people who are a bit doolally on these issues. Leave them alone and let them suffer and stink in their ignorance. The idea that conscience is a ground for discrimination, for apartheid, and for taking rights away from other citizens is utterly shameful. I do not think it is conscience at all.
I am a little out of breath after running up. I was watching this debate on the monitor in the office and felt compelled to come down and reply. Senator David Norris has rightly debunked the use of the word "conscience". I do not understand why anyone would use that language to justify denying a fellow citizen - a fellow human being - a service solely on the grounds of their sexual orientation. It would not be acceptable if it was gender, race, colour or any of the other characteristics-----
On a point of order, nobody is talking about depriving people of a service solely on the grounds of their sexual orientation.
That is not a point of order.
That distinction was made clearly. Senator Averil Power is obviously not listening to the debate in full.
Senator Averil Power to continue, without interruption.
The effect of what the Senator argued is that some people should be allowed to deprive others of a service from a shop or business solely because they object to the sexual orientation of a couple or an individual. They may ground their objections in a matter of conscience. They can call it what they like, but the effect is to deny people a service purely because of who they are, because of an inherent personal characteristic. It would be outrageous to allow this. Where does this stop? There were pubs in this country for many years that did not let women in. Is that just as okay? Is it exactly the same? Can one decide not to let women into one's establishment? If one comes from other fundamentalist religious viewpoints, can one refuse to serve Christians? Can one refuse to serve women? Can one refuse to serve women unless they are dressed in a particular way? That is all part of this argument. We live in a republic, where all citizens should be entitled to equal rights, equal respect and equal esteem.
That is it.
This is a very dangerous proposition. It is couched in language like "conscience", but it is actually nothing more than a licence for prejudice and discrimination. I am glad the Minister is resisting it. I am also somewhat disappointed that all kinds of extraneous issues are being dragged into this debate on Committee Stage. The Bill is about one thing and one thing only, namely, the right of two adults who love each other and are committed to spending their lives together to marry. That is it. It is not going to force anybody else to get married. As the Minister pointed out at the start, the Government is clearly setting out in the other legislation the freedom of the churches not to marry anybody they do not wish to marry. It is bizarre that there are all kinds of tangential, unrelated issues being dragged into this debate.
As I was detained by bankers during the week, I was not here to support the Minister on this legislation. I welcome it warmly. She and the Government are to be commended. Nothing in my conscience is infringed at all by the happiness of other people. The Presbyterian church in the United States declared itself in favour of same-sex marriage last Tuesday, and I have never accused Presbyterians of lacking conscience in addressing this or any other issue. Society should cherish and treasure those who want to express and have asked us to allow them to express their loyalty, commitment and dedication to one another. That should be recognised. I recognise that commitment and praise that loyalty and dedication which they wish to show to one another. LGBT people are valued members of this society.
They do nothing that undermines the marriages of people who are heterosexual. There is no threat to anybody's marriage and nothing to worry their consciences in the slightest in the fact that other people wish to have institutional recognition for the commitment they wish to make. It comes after a period when marriage was in decline among heterosexual people, who felt it was a bourgeois institution. This resumption of interest in that institution as a commitment and as a bulwark in society is something we should commend. It is emphasising the spiritual, philosophical aspects of a relationship and not defining it in purely physical terms, such whether the couple can have children.
Wider society will gain because of the act of generosity. We will cherish and bring in fully into our community the members of the LGBT community and they will not be undermining anybody. We have been through these barriers and the sky has never fallen in. The first woman bishop in the Anglican community serves as the bishop of Meath and Kildare. Society and institutions evolve, change and improve through time. It enriches society. Let us recognise the principles the Minister has brought before the House and not be sidetracked by issues such as apartheid in the cake industry, Protestant cakes, Catholic cakes and whatever other kind of cakes we want to have.
Those issues are too trivial. We are asked, in a Seanad founded by Arthur Griffith and Michael Collins, to incorporate diversity. I am sure people were scandalised when W. B. Yeats gave the speech on divorce here, but society was open enough even then to listen to what Yeats had to say. I encourage and warmly welcome what we have heard in favour of this legislation. Those who feel threatened by it should really ask themselves what they are threatened by. I do not see any threats; I see an enrichment. I commend the Bill and the Minister for its introduction. I wish I had been here on earlier Stages to express that support. This is an important development in Irish society which should be warmly welcomed.
I echo the words of Senators Sean D. Barrett, Averil Power and others in saying this referendum Bill is about one issue, that of marriage equality. For the last hour, on this one amendment, we have been debating quite a number of extraneous issues and getting sidetracked, as Senator Sean D. Barrett said. I urge colleagues to focus on the core issue of marriage equality. I wholeheartedly support the Bill and support the Minister in her opposition to these amendments.
It would be remiss of me not to support Senator Ivana Bacik and commend Senator Sean D. Barrett for what I would describe as an excellent Second Stage speech.
I was downstairs.
If only the Irish Independent would give him as much attention on the Aer Lingus issue as they gave Donald Trump today.
Introducing Aer Lingus is going a little too far. As the Minister has indicated that she has nothing further to add, unless Senator Rónán Mullen has something new, I will have to put the question.
Senator Martin Conway has a great gift we can all learn from. He manages to say affirming things about people on all sides of the debate in the Seanad and there is never the slightest tone of needling, unpleasantness, insult or moral outrage. We could all learn from him.
The Senator certainly could.
It will help him at the ballot box also.
Is that what the Senator is looking for?
That is not a promise. The Senator could possibly learn a thing or two from him also. Senator Sean D. Barrett might very well be right in what he says, and I would like to be associated with the general feeling of positivity he has towards people. With others, I have made it very clear that whatever reservations we have about this proposal, we want a culture where there is complete love and respect for people, gay people included, and respect for people's private lives and personal commitments. That is not what this issue is about. What Senator Sean D. Barrett has said has left me with a question: are people entitled to a different point of view? As I said before he came in, it is not the people whose views one agrees with whose freedom of speech one should be concerned about. It is the people with whom one one disagrees. It is precisely when one is most repelled by somebody else's point of view that the question arises as to whether they should be free to go their own way. What is at issue is that people will not be free to go their own way. Some people are even willing to forgo business, and most business people are quite conscious of the bottom line. If they are troubled by being publicly associated with something with which they disagree, should they not be free to dissociate themselves? The right to freedom of association in the Constitution surely implies a freedom to dissociate. I am raising the concern that this amendment will probably encroach upon that freedom. It is a problem with the political parties generally, because they are so fused and dominated by groupthink that they do not get the right of individuals, generally speaking, to go their own way. That is why Senator Jim Walsh is an Independent today.
He is not.
Senator Rónán Mullen should avoid commentary on different people and stick to the amendment. I have to put the question.
The point is relevant because Senator Averil Power does not seem to understand that I certainly have no truck with any discrimination against people on grounds of their sexual orientation. If a person is refused a service because he or she is gay, the person refusing the service should be prosecuted. I do not think Senator Averil Power believes me when I say that.
Neither do I.
She has not given evidence of understanding the distinction between-----
Why is the Senator not addressing the issue of equality?
The Senator is avoiding a reply.
Excuse me. Everyone has had ample opportunity to contribute. Unless Senator Rónán Mullen has something further to add-----
I am just trying to explain the position. I will not refer to other Senators again, but when they are so enthused as to come from their offices to have a go I think I should at least be able to answer. It should be very clear. We heard Senator David Norris rightly pooh-pooh the provocation that was involved in the Ashers Bakery case, but let us remember that the business is probably in danger right now. They are being pursued-----
Rubbish. They have huge support. There are thousands of people at the Ulster Hall.
The Orange Order.
They are being pursued by the legal authorities in the North. That is why these issues are relevant. I appeal to whatever latent sense of tolerance there is in the Senators who disagree with me on this issue to please let people go their own way, even if the Senators think their concerns are despicable. The only way we can have a tolerant society is if we allow each other freedom to live according to our beliefs. That is what is at stake.
That is what I have been arguing - to be free to go my own way.
The Senator is entitled to go her own way.
Am I free to marry the person I choose to love?
Would the Senator tolerate the teacher who wants to be able to teach that a father and a mother is the best thing for bringing up a child? Should that teacher, in the Senator's view, be in peril of his or her job? Those are the issues.
What about those teachers who are in danger of losing their jobs because of ethos?
On a point of order, I have sat here for over an hour and we are supposed to be debating amendment No. 7. The issue of a completely separate legal case is being raised time and again. There is already equal status legislation. We are debating a Bill to amend the Constitution and a specific amendment to that Bill.
If Senator Rónán Mullen has nothing further to add, I have two colleagues who wish to make brief comments and then I am putting the question. Is that clear?
I acknowledge Senator David Norris's statement that in the Ashers Bakery case it was a set-up. People, in a provocative way, looked to get the response in order that a case could be taken. That is not unique.
We cannot comment on a case that is ongoing.
That is Senator Jim Walsh's personal opinion. I ask colleagues to, please, avoid mentioning businesses and the names of people who are not here.
All I am saying is there have been many similar examples in this sphere. That should be obvious to all. Although the Minister says people can go to the Supreme Court or wherever to defend their position, we have not yet achieved a true republic in this country where people can access the courts.
I have argued many times that the exorbitant legal costs have been ignored by subsequent Governments and the courts are not accessible except to people of very significant financial means.
In the threat by a number of speakers, two in particular, but others here there is the issue that the exercise of conscience equates to or is the equivalent of homophobia. I ask people to take note of this. Should the referendum be passed many people, including parents, will have that charge levied at them because of the nature of the ideology which purports to promote same-sex marriage. It is highly regrettable that people use it and they serve their own case and their own interests no advantage and benefit in doing so.
Like Senator Averil Power, I have been sitting in my office for the past hour watching this debate. I am coming to the conclusion that there is a lack of tolerance by some of my colleagues. There is a lack of understanding of what equality is and what it means. I was fortunate enough in my own life to find somebody I loved and I have lived with that somebody for 37 years. It might just as easily have been a man as a woman. My colleague, Senator Katherine Zappone, is fortunate enough to have found somebody she loves. What right have I or anybody else to deny them the same status that I enjoy?
I am glad the Acting Chairman said he would put the question. It has come to the time to put the question. I have the greatest respect for my colleagues and their position but there comes a time when one has to stop flogging a dead horse and find a new one. Now is the time to do that.
Does Senator Averil Power wish to comment, after which I will put the question?
I wish to respond to Senator Rónán Mullen who took issue with me stating that what he was arguing for was for a service provider to be able to deny somebody a service because of their sexual orientation, yet he was clearly arguing that two married couples presenting in a cake shop or wherever, one a heterosexual married couple the other a same-sex couple, one can be denied a service. The only distinction between those two loving couples, who have just entered into the institution of marriage and profess their love, support and commitment to each other, is their sexual orientation. One can dress that up as one wishes and use the softest possible language but that is the only difference. That is why what is being proposed is a licence to discriminate. I would fight for the rights of all Members, even those who disagree most profoundly with me, to their freedom of speech and the right to argue their views but, as has been pointed out, they do not have a right to impose their views and a particular religious position on everybody else and to deny, as they are seeking to do, loving and committed gay couples and lesbian couples the right to marry because of their religious view. This Bill is on civil marriage and it is clear about that. It will not force the churches to marry, it is about giving equal rights to all citizens; therefore, there is a balance in all of these things. One person's freedom of speech should not and cannot in a republic be used to fundamentally strip away the most basic human right, the right to marry, from fellow citizens on an issue that is not going to affect anybody else. It would finally give beautiful people such as Senator Katherine Zappone and her partner who fought for such a long time for a right the rest of us take for granted, a right that many people do not take as seriously as gay and lesbian couples who have fought for years to marry because they care about marriage and value it, not because they want to undermine anybody else's marriage as they know that marriage is beautiful, not just for couples but for society. All they are asking is that we have the generosity of spirit and of love, as fellow citizens, to give them that opportunity.
Is Senator Rónán Mullen pressing amendment No. 7?
What Senator Averil Power has said is quite removed from the amendment I am proposing.
In fairness she is not unique in that respect.
I am just making the point that sauce for the goose has been very much sauce for the gander.
Is the Senator pressing the amendment?
The Minister might, perhaps, clarify the-----
The Senator should put the amendment because he is-----
In regard to the case I cited, Senator Averil Power may be interested in the reply, would it be discrimination on the gender ground or the sexual orientation ground where people felt unable to provide services in the context of a same-sex marriage event?
On a point of order-----
Would it be discriminated against in the context of a same-sex marriage event?
There is a point of order.
It is a very legitimate point, essential to the amendment.
It is a legitimate question in a totally different context. It is not a legitimate question in this debate on a referendum Bill.
That is not a point of order. Is Senator Rónán Mullen pressing the amendment?
I am asking the Minister one more time to clarify whether she thinks that would be discrimination-----
On a point of order, to ask the Minister to provide legal opinion today is nonsense.
That is not a point of order. Is Senator Rónán Mullen pressing amendment No. 7?
I am asking the Minister to answer the question I put, which is whether such a decision by a service provider - this is an amendment about freedom of conscience among other things for educators and service providers included - would be discrimination in her view on the gender ground or on the sexual orientation ground because that will be germane to the issue of how this amendment might be interpreted by the courts in dealing with any future dispute. I am doing my job as a legislator by asking what the likely scenario would be. If the Government is serious enough to put a referendum before the people it should have the homework done to give us the answer to that question.
Senator Rónán Mullen knows well the answer to that question. When people are taking an equality case, they decide on what grounds they are going to take it.
Tairgim leasú a 2:
I leathanach 5, líne 14, "an t-alt a bhfuil an téasc de" a scriosadh agus "na hailt a bhfuil an téacs díobh" a chur ina ionad.
I move amendment No. 2:
In page 4, line 14, to delete "the section" and substitute "the sections".
Amendment No. 2 was discussed with amendment No. 7. Is it being withdrawn?
Does the House have to consent to the withdrawal of the amendment or is that purely in the hands of Senator Rónán Mullen?
The House does have to consent.
It would save time later.
Excuse me, but I did ask if amendment No. 2 was being withdrawn.
Senator Rónán Mullen was asked whether he wished to withdraw the amendment. I am saying that as we had a long debate, the intention of the Senator in withdrawing the amendment was to have another debate later tonight. Frankly, many of us have other things to do than listen to the same arguments again.
Is the Senator questioning the manner in which the Chair is chairing proceedings?
Will the Senator, please, resume his seat then?
I am asking the Acting Chairman to put the question.
Will the Chair, please, clarify the position? Does the House have to consent to withdraw the amendment?
Amendment No. 2 is being withdrawn. Is that agreed?
The question is: "That leave be given to withdraw amendment No. 2." Those in favour say "Tá."
Those against say "Níl".
I think the question is-----
Excuse me, but I did not rule on the indication I had received. I think the question is carried.
What is the point if the question is carried?
As the Tellers for the "Tá" side have declined to sign the Tellers' sheet, as Leas-Chathaoirleach, I must declare the question lost. In the circumstances, I am obliged to put the question on amendment No. 2.
If amendment No. 3 is agreed to, amendment No. 4 cannot be moved. Amendment No. 4 is a physical alternative. Amendments Nos. 3 and 4 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Tairgim leasú a 3:
I leathanach 5, línte 19 agus 20, "an tAcht um an gCeathrú Leasú is Tríocha ar an mBunreacht (Comhionannas Pósta), 2015" a scriosadh agus "an tAcht um an gCeathrú Leasú is Tríocha ar an mBunreacht (Pósadh a Athmhíniú), 2015" a chur ina ionad.
I move amendment No. 3:
In page 4, lines 19 and 20, to delete "Thirty-fourth Amendment of the Constitution (Marriage Equality) Act 2015” and substitute "Thirty-Fourth Amendment of the Constitution (Redefinition of Marriage) Act 2015".
I have a number of questions and comments to make and I would appreciate it if the Minister could answer the questions I am asking, which are important. What is marriage? The definition I came across is that marriage unites a man and woman with each other and any children born from their union. This is the definition I quoted on Second Stage. It is an uncontroversial, generally accepted definition of marriage, but this Bill proposes to redefine marriage. Same-sex marriage is not a right recognised in international rights law. Neither the United Nations nor the European Court of Human Rights does so.
The Minister has mentioned that it is a right on a number of occasions. Can she point to any such international recognition of same-sex marriage as a human right?
Currently, failure to consummate the marriage is grounds for divorce and annulment. Will this be affected should the referendum pass? It is ground used by people with regard to either separation, annulment or divorce and has implications for people if there is a change to it.
The term "marriage equality" in the Title of the Bill is an example of political framing. It is not a neutral term but a loaded one and shows a profound lack of respect for the people for the Government to try to condition and control how Irish voters think about the proposal by framing it in a loaded rather than neutral way. Marriage equality is a term that emanates from the pro same-sex marriage lobby groups in Ireland and internationally. Marriage equality is a lobby group slogan. It is not a neutral description of what the Government proposes to put before the people on 22 May. The irony is that while the Government included the word equality in the title of the Bill, the loaded term marriage equality clearly shows that the Government does not favour equal treatment for all sides and full opinions in this referendum. Irish constitutional law demands that all referendums be conducted in a fair, equal and impartial way. The loaded one-sided language is an inauspicious start to the referendum campaign. Is the Government deliberately ignoring the McKenna principle and the judgment of the Supreme Court in the McCrystal case? McCrystal v. the Minister for Children and Youth Affairs concerned the Government campaign in support of the children's referendum. The Supreme Court ruled that the Government placed the rights of those in favour of the children's referendum above those against when it put together its information campaign. That is the finding of the Supreme Court. Is the Government doing the same thing in its use of the term "marriage equality"? Is it prejudicing the outcome of the referendum? Is use of the term "marriage equality" intended to secure an affirmative result in the referendum? As an organ of the State, the Government has a constitutional obligation to other parties and cannot be seen to favour one side over another. Individual members of the Government are entitled to favour one side over the other, but the Government must treat all sides equally. The use of loaded language and subtle advocacy does not do this.
Its handling of the children's referendum has been challenged in another case, brought by Joanna Jordan. The case urges a rerun of the children's referendum because of the Government's handling of it. Journalist Mr. Bruce Arnold said it was intemperate and overzealous of the Government to push ahead with the marriage referendum when the Supreme Court had not yet ruled in the Jordan case-----
He is English.
-----where the referendum was under scrutiny. Mr. Arnold has already caused the Government embarrassment and forced it to change the marriage referendum's Irish language text because it could be interpreted as banning opposite sex marriages. Constitutional law academic Dr. Seán Ó Conaill said the Government was reaping what it had sowed because it had made such a mess of the children's referendum. The Government has an appalling record when it comes to respecting the views of people. The Taoiseach was in government at the time of the 1995 McKenna judgment and the current Minister for Justice and Equality, Deputy Frances Fitzgerald, was the Minister for Children and Youth Affairs at the time of the children's referendum. Both should have learned lessons when it comes to pushing agendas in referendums.
I take particular exception to the fact that the constitutional question before the people, and the Bill that underpins it, is a one-sided presentation of the argument. It is not the way to respect and treat the people. People on the other side have a different view and they are entitled to the same impartiality and neutrality from the Government as those following this side. I oppose it because children will be deprived of fathers and mothers and affected by this referendum. We have spent the past number of days, including all this week, talking about changes made to accommodate the referendum.
I also have concerns about the ideological aspect to redefine marriage and family and the application for children in schools, which I mentioned on Second Stage. With regard to my third concern, I preface what I will say by quoting from Keith Mills, a self-professed gay man but an anti same-sex marriage campaigner:
The ... 'one size fits all' method of legally recognising all unions fails to address the fact that the relationship that a man forms with another man is intrinsically different from the relationship that a man forms with a woman. This difference is as fundamental as a man and woman are themselves different.
There is a great deal of talk about diversity, but, when it comes to this, nobody wants to recognise that there is a difference and diversity. Existing marriage rights should remain unique to marriage because of its uniquely pro-child nature. It is not discrimination, despite what people say, to treat a unique institution such as marriage between a man and a woman in a unique way.
My third concern is that young gay people, in particular, who bought into the ideology will come to recognise that their relationships are different. That does not mean that they are not entitled to the same respect, but it is different. The relationship between a man and a man and a woman and a woman is different to the relationship between a man and a woman. There are biological and other differences underpinning that statement. This should not detract from the respect such people are entitled to.
As far as I am concerned, I never want to deny any loving gay couples the right to live together in happiness, to make a lifetime commitment in a monogamous relationship is already secured in civil partnership. That is not at issue. It has been recognised and legalised. Archbishop Martin put it well when he said an ethics of equality does not require uniformity. I ask the Minister to reflect on that and on the amendment I have tabled, which means that the people will, in a fair and objective way, go to the polls and vote as they see fit on the issue. I ask those people that they reflect on various arguments put forward for those who are looking to vote "Yes" and those looking to vote "No" and come to a decision in the best interests of society as a whole. There is an ongoing debate between individualism and the common good and there is ideology, particularly around the former. That is at issue in this referendum and I am disappointed the mistakes made in the children's referendum are being repeated. I am not a lawyer and I do not know whether it is open to legal challenge but it is disrespectful to the electorate, to their intelligence and to their independence to make a well considered, independent adjudication on the matter.
I have heard a lot of nonsense in this House, but for sheer fatuousness the last contribution take some beating. Marriage has always been in change and redefined. Let us forget the idea that there is some kind of absolute ideal that has always applied. That is nonsense as it has always been changing. Save me the business of controlling discussion. That is a fat one. Who are the people who got involved in the row about homophobia when RTE coughed up €85,000? The person was clearly homophobic and there is no question about it. I indicated in the House the violently homophobic statements that person had made.
Senator JIm Walsh says the Government is not giving equal time to the Opposition. When did any Government argue against its own legislation?
I never heard such nonsense in my life. A Government is in place to formulate policy and give instrumental effect to it. It is not in place to argue the case against its own legislation. That is simply daft. Of course, it is committed to winning. What else should one expect - that it is committed to losing?
I refer to the nonsense that children will be affected. The Bill we were discussing yesterday dealt with children and it will automatically pass, about which there is no question. As the Government has the numbers and the support required, it is dealt with, done and dusted; therefore, let us forget the question about children. This Bill is about marriage equality. Senator Jim Walsh produced the token gay man. In any population group one will find 96% going one way and a few dingbats going the other. It is interesting that these gay men are produced and pop up every so often because of the McKenna judgment. As I said yesterday, the Government should seriously look at that judgment. It is frightful nonsense that all sides are given an equal share, however absurd the arguments are. This is absolute nonsense and I thought so at the time.
On the question of ideologies, I agree with Senator Jim Walsh. The Iona Institute, courtesy of Domino's Pizza and Lolick Limited, is a classic example. It is the most ideologically driven group I have come across and it is not a charity. I would be very interested to know how it receives charitable status for such a campaigning political group? What is charitable about this? In the James Joyce Centre we had to argue for years to obtain charitable status. How is it that the people concerned received it at the snap of fingers? What are the charitable commissioners doing? How on earth did a group of self-appointed ideologues receive charitable status? How is it that they are able to give two fingers to the SIPO-----
Will the Senator, please, confine his remarks to the subject of the debate which is not the Iona Institute.
I am very clearly sticking to the subject. I thank Senator Fidelma Healy Eames for her most helpful intervention. The previous speaker spoke about ideologies being in play, illustrating that ideologies were most certainly in play, particularly on the "No" side.
He did not identify anyone in his contribution, but the Senator is doing so.
Neither have I.
The Senator has.
Who did I identify?
It is shocking that the Iona Institute has charitable status.
The Iona Institute is not a human being; it is a body. Does this mean that we cannot mention the ESB? Hello - what is happening?
Will the Senator, please, continue his contribution and stick to the amendment?
I have just finished and I would have finished if I had not been interrupted. There are ideologies in play and the sooner we accept that fact and understand it and counter these ideologies, the better.
These two amendments are interesting. They propose to delete the Thirty-fourth Amendment of the Constitution (Marriage Equality) Act 2015 and substitute the Thirty-Fourth Amendment of the Constitution (Redefinition of Marriage) Act 2015 and delete the Thirty-fourth Amendment of the Constitution (Marriage Equality) Act 2015 and substitute the Thirty-fourth Amendment of the Constitution (Marriage Without Distinction as to Sex) Act 2015. To be fair, both describe exactly what the Bill seeks to bring about. The Bill is preparing the ground for the holding of a referendum in order that the people can vote either to accept or reject a redefinition of marriage as framed in the Constitution and supported in case law that it is a union of a man and a woman. I am speaking about this issue in a very open way. I have yet to decide how I will vote, but that is exactly what the Bill seeks to do. The wording in amendments Nos. 3 and 4 provides honest and accurate descriptions. The Title of the Bill, Marriage Equality Bill, has been designed by the Government to confuse and achieve a certain result. It is disingenuous and misleading and unfair to the voter.
I voted in favour in the children's rights referendum and was glad that I had supported it. However, there is no definitive outcome. Therefore, lessons should be learned. Should the referendum on marriage equality be carried, I will accept the outcome, but we have a duty to be clear for the sake of the voter. That is our job in the Houses of the Oireachtas. Not every voter on the street reads legislation, but many people - I hope many more - will vote. People take time when they vote to read what they are voting on, but all that will be provided on the ballot paper is the Title of the Bill. The Minister should want it to be as clear as possible, which is only good and right.
I have received a lot of feedback which shows that the whole debate is underpinned by fear, so much so that people are afraid to express how they feel. That is unbelievable and outrageous. Senator David Norris spoke about how much he was against the McKenna judgment; I say thank God for that judgment, as otherwise no voices would be heard. To be fair to those involved in the gay movement, they have fought for decades to have their differences recognised, which is why I voted in favour of civil partnership. Now, the word, "equality" is being introduced into the marriage issue as if being gay and heterosexual is the same. We know that it is different, but it is okay to be different. They are equal as people but clearly different in their orientation, which is great and fine. I urge the Minister to be courageous and call it what it is - a redefinition of marriage or marriage without distinction as to sex. That would be new and different for the people and we are not in dispute on the issue of equality, but the reference to marriage equality is very misleading. The Government should be committed to framing the Title accurately.
Sometimes it has to do with the ruthlessness of people in power that they think they can shape things whatever way they want to manipulate public opinion and get a result, even if fair play in some way is the loser along the way. That is what is happening in this instance in the way this Bill has been titled. The Title is what will be on the ballot paper. Calling it the Marriage Equality Bill is just one last attempt by the Government to put a leaflet in people's hands as they go to vote stating, "This is the way you should vote if you are a nice person." That is unacceptable; it does not respect the referendum process or the practice followed up to now of choosing non-leading language on the ballot paper. This issue will come up time and again during the debate unless the Title of the Bill is changed. In fairness, it would be very much better if we had a less compliant media which would scrutinise the decision of the Government to adopt a campaigning term that has been used by a highly successful and very talented lobby group - fair play to it - to advance its case for redefining marriage.
The Government should have stood back from that but, of course, it has been about manipulation all along.
It has been about manipulation with the Constitutional Convention. We know that the Constitutional Convention was a ready-up in terms of how people ended up on it. There were married couples on the Constitutional Convention and this was supposed to be the organisation that represented the citizenry of Ireland. There were former councillors, political types, former and current members of the Labour Party and, remarkably, they all ended up on this representative group of 66 lay people on the Constitutional Convention. The whole thing was a ready-up to allow-----
On a point of order, to be fair, I do not think anybody ever said that.
What the Senator is after saying.
That is not a point of order.
I am delighted to be the first to say it. It should have been said a lot sooner. I think I did say it myself along the way.
The Senator did say it sooner.
The whole thing was a ready-up. It was the Labour Party in government creating the Constitutional Convention as a mechanism to build up a public impression that there was public support for this particular measure above other measures. We got a set menu of some of the Labour Party's favourite issues and, it has to be said, the Government's favourite issues, but this one was at the heart of it. Putting this issue before the Constitutional Convention was all about a fig leaf of legitimacy to say this is a burning issue that is coming up repeatedly again and has to be resolved. However, the decision on what to put to the people in a referendum is really a decision to prioritise an issue above all sorts of other issues.
We remember the former leader of the Labour Party, Deputy Eamon Gilmore, talking about this as the civil rights issue of our time. He was doing so, no doubt, at the behest of the very group of young Turks in the Labour Party that ended up throwing him out. We will see how enthusiastic he is during the campaign.
The Constitutional Convention brought forward this issue and there were some very tendentious presentations at that convention. That gave the Government the excuse it needed to act on the recommendation of the Constitutional Convention to bring forward this referendum. Not content with that little bit of readying up, however, the Government then engaged in the strategy of naming this referendum in such a way as to convey the idea that people who like equality and all of that good stuff will be in favour of this referendum. Meanwhile, the unpleasant people who do not like equality but like to discriminate against people, will be the ones to vote against it. In fairness, they do not always call them "unpleasant". They might otherwise portray them as benighted in some way.
The Government has been in such a haste to do all this that we even had the fiasco of a wording as Gaeilge for the referendum that had the possible effect of banning heterosexual marriage in favour of same-sex marriage. A compliant media again let the Government right off the hook on that when they hastily went to amend their hand and came up with a better translation into the Irish language of what they were proposing to do. Does it not tell us an awful lot that that even happened? It tells us a lot about the arrogance and presumption that this could all be rushed through quickly, so much so that they did not even get it right at first. What does that tell us about the preparation that underlay this proposal in terms of understanding the full outworking of the legal issues involved? What does it tell us about the issues I, Senator Quinn and others have been raising in this House about the possible meaning of this referendum proposal down the line?
If the Government were to be judged on the fiasco of the Irish language wording of this amendment, it would tell us that it does not have the faintest idea of where exactly this amendment might lead when it comes to being interpreted in the courts. That should have received much more attention because it was very revealing.
Senator Fidelma Healy Eames mentioned the Patricia McKenna judgment and the Coughlan judgment. Those two individuals did much more public service for the cause of democratic legitimacy than this Government has ever done. It was thanks to Patricia McKenna's initiative, and the court decision that flowed from it, that we will have anything like a semblance of impartiality in the broadcast media's coverage during this campaign, and indeed in other coverage, by preventing the Government from spending public money to advocate one side or the other in the referendum. Mr. Anthony Coughlan's case concerned party political broadcasts.
Those two civic-minded individuals brought their cases in the context of the divorce referendum. I do not think anybody even knew their position on that referendum, but they saw the point about democracy and fairness. If the Government even half got the point, it would not be engaging in this patronising and manipulative pretence with the electorate by putting marriage equality as the title of this referendum. It is entirely tendentious campaigning and anything but in the spirit of the McKenna and Coughlan decisions. In a sense, the Government is using public money through its Oireachtas majority to tilt, or attempt to tilt, the public's view on what stand they should take on this issue.
It is a long way from the Government's earlier expressed line that it is only about marriage. If it was only about marriage, it would talk about it as marriage. However, by taking on the phrase of a lobby group on the ballot paper, it has shown what way it wants this referendum to go. That may well raise constitutional points. I do not know what view of it the courts would take if it were challenged. I do not think the Government can be relied upon to have thoroughly scrutinised that issue. It is so choked up with its own ideology, haste and arrogance to get all of this through that I doubt very much if it has considered any ideas that are unpalatable to it.
The same attitude is to be found in comments by the Minister for Children and Youth Affairs, Deputy James Reilly, and others who have tried to suggest that this referendum is about sending a message to gay people, and in particular young gay people, that they are loved and respected. Think about what that is saying. It is saying that the only way one can send that message of love, respect, acceptance and equal dignity is by voting "Yes".
Suppose, however, that people in their wisdom decide to vote "No" because they believe this referendum would undermine a child's right to a father and mother, while they totally respect and love gay people and their right to equal dignity, their private life and all of those good things. It is quite clear that this Government is happy to use the mental health and happiness of those young people as some kind of a battering ram to get its will through. If the Government were more socially responsible, it would be sending messages to the effect that no matter what way this referendum goes, gay people in our society should know that they belong as much as anyone else, that they are loved, have equal dignity and rights, and that the right to marriage is specifically because it has to do with the two-gender nature of marriage, the complementarity of the male-female relationship and the particular good that does as a special case for the upbringing of children.
The Government would then be communicating much more sensitively so as to really send a message of inclusion and respect, but in fact it is doing the opposite. It is using others as a battering ram to get what it wants. It is trying to do so in a context of emotional manipulation, which does not do the Government credit.
The Senator is the one who is doing that all the time.
In the speech he has just made.
Senator Rónán Mullen to continue,, without interruption, please.
I do not think so. Senator Sean D. Barrett is wrong. In the context of this debate, I have been extremely careful to try to separate the issue of love and respect for people's dignity, which it should be everyone's duty to promote, and the particular question of what marriage means, and whether a change in that would undermine children's rights in certain circumstances.
The Senator should reflect on his position in that regard, but he is entitled to his view.
I do not know whether this will lead to a constitutional challenge, but the public will note what the Government is trying to do. Irish people are astute. They do not like things being rammed down their throats. They do not like being emotionally bullied. They do not like being put on the bad step simply because they take a different view. That is what the Government is trying to do to them. They have also shown a great ability to distinguish between issues. The example that springs to mind is the occasion when, on the same day, the people voted to allow for a reduction in judges' pay but voted against allowing Oireachtas committees of inquiry to make findings of fact that could be adverse to people's reputations. They smelled the rat of politicians losing the run of themselves sitting in judgment over others.
Will the Senator stick to the Bill under discussion, please? He is straying from the subject.
I do not see how.
The Senator is straying from the amendment and discussing other-----
To be clear, I am stating that, on that occasion, people showed their ability not to be manipulated by the way wording-----
The Senator has made his point.
It is exactly on point.
Will we revert to the amendment, please?
It is exactly on point, but if what the Acting Chairman is really telling me is to hurry up and finish, I am about to finish.
We did not call the referendum on judges' pay the "Cut the Pay of Those Greedy Judges Referendum". We did not manipulatively entitle other referenda, but such is the ideology, agenda, determination and ruthlessness of the Government on this Bill that it is seeking to tilt the jury on the very day in that profound and serious moment when people enter the polling booths. It should not do this. Doing so will rebound to the disadvantage of its case.
Senators Martin Conway, Katherine Zappone and Aideen Hayden are next.
I will be brief. I always listen with great interest to Senator Rónán Mullen. While I may not agree with him, he is articulate in the expression of his opinions. His comments on the Constitutional Convention are regrettable, however. Two thirds of the convention were selected by lot from the electoral register. Sixty six of the 100 people on the convention had no involvement in politics whatsoever. They were independent of politics. They were citizens of the country who made the recommendations-----
Is the Senator speaking to the amendment?
I am correcting the record. I thank the Senator.
Will Senators, please, speak through the Chair?
Remember the rudeness yesterday?
The convention's members spoke and gave of their time voluntarily. The 33 Oireachtas Members came from across the political divide. Impugning the work done by the convention on our behalf was regrettable.
It is good that the issue of the Title of the Bill has been raised. I am happy to speak on it and have listened to all of my colleagues' contributions.
Before I discuss the substantive issues and without taking long, it detracts from any strength that Senator Rónán Mullen's argument might have to speak about the "ruthlessness" of people in power or the Government's "arrogance" or "emotional manipulation". It would be sufficient for the Senator to make his arguments without making such unfounded accusations.
Senator Jim Walsh raised a point about the use of the word "ideology". We all have ideologies. "Ideology" is not a negative term. It is a neutral term. The civil rights movement out of which I have been operating in respect of this Bill has ideas, concepts and values in which it roots its practices and actions, just as the Senators' do. I experienced something being named a "gay ideology" as an effort to denigrate or side-step. The Senators probably do not mean to do that, but we all operate out of ideologies.
The argument from Senators Jim Walsh and Rónán Mullen is that we should change the Bill's definition to avoid the Title being loaded or leading people one way as opposed to another. I respectfully disagree. This Title is accurate, not loaded or leading. To add the word "equality" to "marriage" is not to use the phrase of a lobby group as much as it is to use a word that is a foundational, philosophical and ethical category. I respectfully suggest that using the words "loaded" and "leading" as distinct from "accurate" is rooted in the Senators' views and their plans to vote "No" in the referendum and to argue that this is not about equality, but about changing the definition of the traditional family and a child's right to a mother and a father. The question is whether that stance reflects an accurate view of what the Bill is about. This is about equality, voting "Yes" or "No" to equalising homosexual and heterosexual people's rights to marry. The Senators say "No". I respect that. They do not believe that we should equalise people's rights to marry because of questions about children and gender complementarity. While I respect that stance, I disagree with it.
The Bill is about equalising people's access to recognition as families under the Constitution. Lesbian and gay couples are not considered constitutional families, whereas heterosexual married couples are. Lesbian and gay couples do not have that recognition, but the majority of heterosexual couples do. The Bill is also about equalising the rights and status of children of heterosexual, lesbian and gay couples. The children of lesbian and gay couples do not have equal status under the Constitution because their families do not have constitutional protection.
As the Bill is about equality, it is accurate to use the term "marriage equality". This is why I will not support the amendments. To call the Title misleading or loaded is rooted in the Senators' views of what marriage ought to be.
Senator JIm Walsh argued that it was a human right to marry and asked the Minister where that right was protected in the European convention. I will say a few words on why people want to marry. The European Court of Human Rights, ECHR, has acknowledged that marriage confers a special status on those who enter it, the right to marry gives rise to social, personal and legal consequences and marriage is a public undertaking carrying with it a body of rights and obligations of a contractual nature. It is true to say that, in 2010, the ECHR held that Austria had not violated the European Convention on Human Rights by not providing for same-sex marriage. However, it is important to remember that, in the same judgment, the court stated that it no longer considered that the right to marry under the convention had to be limited to persons of the opposite sex.
The basis for the court's judgment that Austria had not violated the convention lay in its view that "marriage has deep-rooted social and cultural connotations which may differ largely from one society to another". For that reason, the court was not willing to impose its judgment against Austria. It is very important to remember that the court also stated it was no longer considered that the right to marry must be limited to persons of the opposite sex. It is worth pointing out that the court has always adopted that deferential stance in relation to sensitive issues. The European court has been deferential. A number of European states, subsequent to when we took our own case, have eventually come to argue for, include and provide for the right to marriage for same-sex couples. Europe is going in that direction.
The ultimate question is one of the impact of the issue that is before the Irish people. This is not like what happened in Senator David Norris's case, when we were one of the last groups in Europe to come on board in relation to decriminalising homosexuality. The court ruled against Ireland because there was an emerging consensus. In this regard, we could be one of the leading members of Europe. We do not have to be at the back of the bus in relation to this one. We can take the change in relation to this issue and help that emerging consensus with regard to Europe. That aside, it is true to say that the European court has not said that the right to marry is necessarily outside the scope of the convention.
I oppose the amendment. I would like to concur with the views that have been just expressed by Senator Zappone. I think the Title of this Bill could not be more appropriate. What is this Bill about? What is this referendum about? They are about giving equality of access to the institution of marriage. At the moment, we do not have equality of access to the institution of marriage. It is very clear and straightforward. I believe it states the case as it ought to be stated.
I agree with Senator Katherine Zappone that there is a further issue around equality. It is a fact that special protection is given to the family based on the institution of marriage. Obviously, there are many families that come outside that definition. Indeed, the children of gay and lesbian couples fall out of that particular special status. As a member of the Constitutional Convention, I was deeply struck by many of the presentations that were made, particularly by the children of a gay and lesbian couple. I would like us to revisit in the future the whole issue of the special status of the family based on marriage because I think it excludes other people who are not married. I sincerely hope this referendum passes when it goes to the people in May. I do not believe we can be complacent on it. If it is passed, I believe protection will be then afforded to the children of gay and lesbian couples. I want that protection to be afforded to families who are non-marital families - single people, for the sake of argument. I believe we will have to revisit the definition of family.
I will conclude by saying I do not believe I have ever heard such disrespect for a Minister in this House. It has been suggested that a Minister has been using the resources of her office to delude the people into making a decision on the basis of fraud. I have never heard such disrespect in this House. I have never heard such deep-seated contempt for the intelligence of the people. I will conclude by emphasising that the Labour Party is consistent and is proud of its history in relation to the marriage equality issue.
I support what Senator Aideen Hayden has said about the deeply unfair remarks that were made about the Minister. Equally, the comments that were made about the Constitutional Convention, of which I was a part, were deeply disrespectful to the citizens involved, who gave a huge amount of their time to engage with this issue. They engaged with it in a very genuine and open way. Many of them changed their minds as a result of hearing all the presentations and all the speakers, one of whom was Senator Rónán Mullen. Everybody had an opportunity to speak at that forum. It is unfair and disrespectful to claim that people did not have the intelligence or wherewithal to make up their own minds.
I wish to comment briefly on the use of the word "equality". The Oxford English Dictionary defines "equality" as "the state of being equal, especially in status, rights, or opportunities". That is precisely what this Bill is about. It is about giving people the equal right and opportunity to marry. That is precisely the definition of equality. Some groups do not like to use the word "equality" because they like to tell us they are in favour of equality, equal esteem and, as Senator Rónán Mullen said, dignity for gay people. The same groups argue that it is okay to refuse a gay person a service just because of their sexual orientation. They say it is okay to refuse to employ somebody, to discriminate against somebody in employment or indeed to fire somebody from their job just because of their sexual orientation. They think it is okay in this context to discriminate against two people in a loving and committed couple on the grounds of their sexual orientation. I am not aware of any definition of "equality" in which those views could possibly fit. People should be honest about where they stand. If they do not believe lesbian and gay couples are entitled to equality, they should argue the reasons for that but they should not manipulate language by trying to extend it to a ridiculous extent.
On a point of order, I think the Senator is entering information that has never been put on the agenda. No one has said it is okay for gay people to be fired.
That is not a point of order.
I appreciate that, but there is a need for accuracy.
It is not a point of order.
Nobody is talking about anything like that. We are talking about the amendment and the Title of the Bill.
That is not a point of order. Senator Averil Power should be allowed to continue.
It is ridiculous in the extreme.
I am quite happy to respond to that point.
I will not respond directly to that point, but I will say that the Iona Institute and other groups that are arguing against marriage equality are the same groups that made submissions in favour of section 37 of the Employment Equality Act 1998, which has been debated in this House, as has the legislation I introduced here to change it. The same people argued that people should be able to be discriminated against or denied employment on the basis of sexual orientation.
I pulled up another Senator a while ago about referring to groups that were not here to defend themselves.
I ask the Senator to speak to the amendment.
I will say that there is a coalition of people, including Members of this House, one of whom is no longer present in the Chamber but spoke earlier in this debate, who have argued for exactly the same thing. Those people need to be open and honest about their arguments. They do not like to use the word "equality". They like to use the word "difference". Those who argued against the abolition of slavery thought they were decent, fair-minded, right-thinking, religious and caring people. They did not like to be labelled as being in favour of inequality. They said that black people, slaves and people from the African continent were just different and had a different place in life, in society and in the world.
May we get back to the subject matter of the Title of the Bill?
I am talking about the word "equality". The language that was used here was the language of difference. Those who argued that women should not serve on juries because we were functionally different would not accept that we were unequal. They said "well, women are just different". The same logic has been used to justify apartheid in America and elsewhere and to justify the prevention of interracial marriage. I want to make it clear that this is part of a theme, and equality is not it. As I said in my opening remarks, the language that is being used in the Title of the Bill is entirely fitting with what it is about. The true definition of equality is about treating people the same in their status, their rights and their opportunities. That is precisely what this Bill is about. If people do not agree with equality and feel they have genuine reasons for that view, they can make those reasons known. However, they should not try to say they are in favour of equal rights for gay people when it is clear that they are not.
I will be brief. I could not let the comments made by Senator Rónán Mullen go without reacting to them. I think everybody has reacted in much the same way to some of the comments. That is the big thing. I will also be opposing the amendments. One cannot say one is in favour of equality, on the one hand, for one thing, as long as people do things the way one wants them to do those things and for as long as they agree with one.
This referendum is about marriage equality for all people, regardless of their sexual orientation. One cannot say one is equal in that sense but that one cannot have equal rights in other ways. I apologise for getting personal about this, but it needs to be said. It is unfortunate that Senator Rónán Mullen can make all the comments he wants all day, leapfrog over the barrier to leave the room and is not hear to listen to other people's points of view.
He has been here consistently during recent days.
He jumped over the barrier, as if we are in a circus, to get out of the room and will not listen to the other legitimate comments Members have made. We sat here and listened to his point of view and let him speak.
I remind the Senator that Members should not-----
I apologise, but I would like to refer to his comments about the Constitutional Convention about which I feel strongly. I was very proud to be part of it. Two thirds of the people on it were members of the public. I sat at a table with two people on the first day on the Saturday morning who were vehemently opposed to voting in favour of marriage equality but by the end of the Sunday they were speaking vehemently in favour of it. They had completely changed their view. It is an insult to the intelligence of the people who participated in the convention to imply that people did not have the intelligence to make up their own mind after they weighed up all the evidence. Those comments need to be taken up.
I remind Members to speak to the amendments.
I welcome the Minister to the House again. I intend to speak to those two amendments that relate to the wording people will see when they go to the polling station to vote. It is not that long ago since we had the referendum on the abolition of the Seanad over which there was a great deal of confusion. I say that as someone who was delighted to see that referendum lost. I accept that a very large number of people were concerned over the wording on that referendum paper because it was confusing. It is a reminder of how much attention we should give to the wording on this referendum paper. I believe Senator Rónán Mullen was correct when he proposed that the Title should be substituted with the wording "Thirty-Fourth Amendment of the Constitution (Redefinition of Marriage) Act". That makes a great deal of sense because the inclusion of the wording "(Marriage Equality)" in the Title takes a biased view. The second proposal is that the words "(Marriage Equality)" in the Title should be substituted with words "(Marriage Without Distinction as to Sex)". That explains what the referendum is about.
A number of people are concerned about this referendum but most of them are not necessarily, although some may be, anti-gay or anti-gay and lesbian movement; rather, they are concerned about it for other reasons. It is important we take into account that there are people who have legitimate reasons for being concerned. One of the reasons, and it is one I mentioned previously, is the question of giving the right to gay people to adopt children. The Minister may have read in recent weeks that Elton John and his partner, a gay couple, called for a boycott of Dolce & Gabbana because the designers said they believed adoption should be only between a male and a female. The Minister can understand people have a genuine concern about this issue. Therefore, some people have genuine concerns and they are expressing them and now we have the opportunity to have a referendum to express them. I would like to ensure there is no criticism in the aftermath of that referendum with people saying they did not understand it or that they were misled. Therefore, the amendment Senator Rónán Mullen has tabled is worthy of consideration and should be considered.
In regard to the comments on the Constitutional Convention in terms of telling the citizen representatives who were members of it that it was ready-up, they are an outrageous reflection on the integrity of a process which has been being widely recognised and praised as a public deliberation process and a very genuine one. Certainly all of those who oversaw it, the academics and everyone who was involved in it will vouch for the integrity of that process.
I propose to respond to amendments Nos. 3 and 4 together. These amendments would have the effect of changing the Title of the Act from the "Thirty-fourth Amendment to the Constitution (Marriage Equality) Act 2015 to either the "Thirty-Fourth Amendment of the Constitution (Redefinition of Marriage) Act 2015" or the Thirty-Fourth Amendment of the Constitution (Marriage Without Distinction as to Sex) Act 2015". The inclusion of the phrase "(Marriage Equality)" in the Title of the Bill is factual in nature. Same-sex couples do not at present have a right to get married. Opposite-sex couples do have that right. Therefore, as a matter of fact, the rights of the two categories of couples, as many Senators have said, are not equal at present. There are explicit prohibitions in place which prevent same-sex couples from marrying. Section 2(2)(e) of the Civil Registration Act 2004 provides that it is an impediment to marriage if both parties are of the same sex. Accordingly, the Title of the Bill sets out the purpose of the proposed amendment which is to extend equality of rights in respect of marriage to same-sex couples. If the referendum is passed, the effect, as is reflected in the Title, would be to put same-sex couples on a footing of equality in terms of marriage.
The proposed Title is clear and enables the electorate to understand the decision it will have to make. The Referendum Commission, in the discharge of its statutory duties, will provide information to the electorate concerning the proposal in the referendum and it will be clear to the people that what they are voting on, on 22 May, will be the wording which is proposed for insertion into the Constitution, that is: "Marriage may be contracted in accordance with law by two persons without distinction as to their sex." The Title of the Bill is the Title proposed by the Government to this House and as passed in the other House. This referendum is about the wording being proposed for the consideration of the people.
In addition, amendment No. 3 would have the effect, if accepted, of being misleading. It suggests the effect of the proposed constitutional amendment would be to redefine marriage. As I indicated in my Second Stage contribution, the proposed constitutional amendment would not redefine marriage. Marriage would continue to be regulated by statute and by the common law in the same way as at present. We are not redefining marriage, as I have said. Marriage, as an institution, will continue to enjoy the same constitutional recognition and protection as it has at present.
The purpose of the proposed constitutional amendment, as I have stated, is to extend access to that constitutionally protected institution to same-sex couples. For these reasons I cannot accept the amendments.
I feel that if I said something was white, the Minister would say it was black. I was interested in a very thoughtful and cogent contribution from Senator Katherine Zappone, for which I commend her. It probably reflects the generality of the contributions she makes in this House. She said - I disagree with her - that the description of marriage equality was accurate. I do not believe it is and I will come to that issue shortly. She said something also which resonated somewhat with me, namely, that the constitutional recognition of the relationship that she and others who have the orientation is something she aspires to and that she believes she is entitled to. I have a difficulty in arguing with the Senator on that issue. In that regard, why not look at some sort of constitutional recognition for civil partnership, which would create a situation where children who arise in those relationships would also be covered? I would also say to the Minister that civil partnership carries practically all rights.
As I stated on Second Stage and when this issue rose in 2010, I opposed this civil partnership model because it was analogous to marriage. Will the Minister outline just one substantive difference that her proposed change will make for people in gay relationships other than having gay marriage included in the Constitution? That could be done by including civil partnership in the Constitution.
I take a different view, for which I have explained my motivations. Same-sex relationships, by virtue of nature and biology, will always be different, but they should be respected in their own right. The obvious natural differences will endure regardless of any redefinition of marriage. This is a fundamental redefinition of marriage, regardless of what the Minister claims. The complementarity of male and female and procreation as a couple consummating marriage comprise a fundamental distinction that will not change. There are absolute, fundamental, natural and biological differences between the relationships, not between individuals. It is in the area of individuals that equality should apply, but we are discussing relationships.
I do not want to set red herrings running in the debate. I take on board what Senator Katherine Zappone said about ideology, as we all come with our own ideological thoughts on the matter. However, I have noticed a strong, well resourced, well funded and aggressive radical feminist agenda internationally. It probably emanated from the United States. It is amazing. I have spoken with feminists in the United States who are strongly pro-life. Feminism arose in the early part of the last century for good reasons. Women were seriously disadvantaged in all societies, including on these islands. The feminists of that era championed the right to life, but they do not now. Radical feminists are mostly in favour of abortion or even gendercide. At the time, feminists were strongly opposed to slavery. That is interesting.
On a point of order, will the Senator speak on the amendment, please? This is more like a Second Stage speech.
That is a matter for the Chair, not a point of order.
As such, ideologies need to be challenged, be it my ideology or someone else's. I endeavour to do so. Nothing will change the natural biological differences, but I am concerned that what we are doing will have a fundamental effect on children and their prospects. I have identified those issues and will not repeat them.
The Government has shown scant regard for the democratic institutions of the Republic. The routine guillotining of Bills in the Houses without adequate debate is unprecedented. The Minister was the distinguished Leader of the Opposition in the previous Seanad, when I recall only one debate on a Bill being guillotined. It is now a routine feature in both Houses. The dismantling of democratic institutions and systems, rather than simply reforming or improving them to better serve the people's interests, the abolition of town councils, the attempt to abolish this House and now the ultimate betrayal of the constitutional requirement to be fair and balanced in respecting the independent voice of people in a referendum are not good enough.
I call Senator Fidelma Healy Eames.
May I speak?
Senator Fidelma Healy Eames has indicated that she must leave.
I stated I was available to speak, but I did not know I would be next.
Did the Leas-Chathaoirleach ask whether my amendment was being pressed?
That was in the belief that no one else was offering and Senator Fidelma Healy Eames was leaving.
I am an undecided voter. I mean that. I am open to listening to arguments from both sides, but I am dismayed that, because of my difficulty with how the Bill is titled, accusations are being thrown around that I might also be against women's equal rights and gay people's access to employment, and in favour of apartheid, and that it is all part of the same thinking.
On a point of order, no one accused the Senator of that.
That is not a point of order.
There is a general throw at anyone who has an issue with any aspect of this Bill. That is wrong. It is exactly what is engendering fear and shutting people up. The public are afraid to express their opinions. The referendum could fail if we continue with this approach. I am not interested in any accusation against the Constitutional Convention or the Government, but I have difficulty with the Title of the Bill. It is unfortunate that the Title is the same as the name of a lobby group.
Senator Katherine Zappone's presentation was superb. Perhaps she might answer my question better. Can we not find a way to confer all equal rights and protections on gay people and any children they may have without it being seen as a redefinition of traditional marriage and the union of a man and a woman? Thus, we could respect difference while guaranteeing equality. The Senator or Minister might choose to answer in the course of this debate.
I am glad that Senator Fidelma Healy Eames said what she just said. I might make robust criticisms of institutions and the Government. I must stand by those. Telling it how I see it is part of my duty as a Member of the Oireachtas, but I try to do so without personalising it. We have done better than on previous occasions, but I am disappointed that we have not managed to be courteous in our dealings with one another.
One burger, two potatoes, some lukewarm carrots and a can of Diet Coke are the reason I jumped the barrier and was so light-hearted. I was going to get my lunch. Senator Mary Moran had plenty of time to have her lunch when she was not in the Chamber listening to the debate. I would prefer it if people did not take pot shots at me simply because I decided to leave the room. That is all I have to say.
I did not-----
Hold on one second. This matter has already been ruled on and it was wrong of the Senator to raise it. Is the amendment being pressed?
I intend to press it, but the Minister did not respond to my question on the consummation of marriage. There are people who will choose an annulment over a divorce because of their religious beliefs. They can get annulments on the grounds of the non-consummation of their marriages. Will that situation be affected by this change? If so, in what way? It must have implications.
Does the Minister wish to add anything further?
No. I have gone through the amendments and have nothing further to add.
May I speak again?
The Minister has the right to reply and says that she has nothing further to add. The Senator cannot compel her to respond.
I will not compel her. It is appalling that the Minister does not have a response to an important and pertinent question on the subject matter before us.
- Healy Eames, Fidelma.
- Mullen, Rónán.
- Quinn, Feargal.
- Walsh, Jim.
- Bacik, Ivana.
- Barrett, Sean D.
- Brennan, Terry.
- Burke, Colm.
- Byrne, Thomas.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Conway, Martin.
- Craughwell, Gerard P.
- Cummins, Maurice.
- D'Arcy, Jim.
- Hayden, Aideen.
- Henry, Imelda.
- Mac Conghail, Fiach.
- Moloney, Marie.
- Mooney, Paschal.
- Moran, Mary.
- Mulcahy, Tony.
- Naughton, Hildegarde.
- Noone, Catherine.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Brien, Mary Ann.
- O'Donnell, Marie-Louise.
- O'Keeffe, Susan.
- Power, Averil.
- van Turnhout, Jillian.
- White, Mary M.
- Wilson, Diarmuid.
- Zappone, Katherine.
Is amendment No. 4 being moved?
May I ask for a ruling on a point of order? How can an amendment be discussed if it is not moved? I understand Members have discussed the amendment. I would have thought that discussing it was tantamount to moving it.
No. Each amendment must be moved individually. Even though it has been discussed, the Senator-----
How can it be discussed if it is not moved? It does not apply in the parliamentary sense.
That is what the House agreed. The content has been debated. Senator Rónán Mullen is entitled to move or not move the amendment and he is not moving it.
I will only say this and then I will sit down: it is a nonsense to have people speaking on amendments without moving them.
It is standard procedure.
It revolts reason. That is all I will say.
May I speak?
Do not get involved in this debate. I am in Senator Rónán Mullen's favour.
I thought that I was speaking to Senator Jim Walsh's amendment.
I wish to raise a point of order about the Order of the day. I appeal to the Government to consider carefully the holding of a late night session to deal with the marriage equality Bill and the Children and Family Relationships Bill.
That is not a point of order.
It is playing into a certain side of the debate.
The Senator knows that this is not a point of order.
The Government will be blamed for late night sittings. It claims that these Bills are not linked, yet we are being rushed into a late night sitting to debate both.
That was agreed this morning and I cannot undo it.
- Bacik, Ivana.
- Barrett, Sean D.
- Brennan, Terry.
- Burke, Colm.
- Byrne, Thomas.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Conway, Martin.
- Craughwell, Gerard P.
- Cummins, Maurice.
- D'Arcy, Jim.
- Hayden, Aideen.
- Henry, Imelda.
- Mac Conghail, Fiach.
- Moloney, Marie.
- Mooney, Paschal.
- Moran, Mary.
- Mulcahy, Tony.
- Naughton, Hildegarde.
- Noone, Catherine.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Brien, Mary Ann.
- O'Donnell, Marie-Louise.
- O'Keeffe, Susan.
- Power, Averil.
- van Turnhout, Jillian.
- White, Mary M.
- Wilson, Diarmuid.
- Zappone, Katherine.
- Healy Eames, Fidelma.
- Mullen, Rónán.
- Quinn, Feargal.
- Walsh, Jim.
When is it proposed to take Report Stage?
Are we proceeding to Report Stage?
On a point of order, I was notified this morning by the Bills Office that there would be a sos of one hour at the conclusion of Committee Stage in order that Members would have an opportunity to submit amendments on Report Stage.
I understand those arrangements relate to the Bill due to be taken after this one.
On a point of order, will copies of the Report Stage amendments be circulated?
In that event, proceedings should be suspended until they are circulated.
As the House has agreed to take Report Stage now, we are obliged to wait until the amendments are circulated. I understand copies are available in the anteroom and I will ask the ushers to circulate them now.