TÁ OR NÍL — SAME-SEX MARRIAGE, SURROGACY, HOMOSEXUALITY

Diarmuid Breatnach

When the votes are counted after today, we will either have a new clause inserted into our Bunreacht (Constitution) or we will not. If we do not, many of the “Vote Yes” campaign and opinion will be despondent. The revolutionaries among them should not be so but should instead reflect on their weakness as a force and on how to make that force stronger.

Should the vote result in a change in the Constitution, it will be probably the biggest blow so far to the power of the Catholic Church in lay society, a power it has enjoyed and abused even before 1921 but certainly since. Some, on both sides of the question, will see it as a blow against the Catholic religion itself but that is not necessarily so. Christianity and its Catholic variant survived and even thrived without State support in the past – indeed when its followers were discriminated against in every conceivable way by State power, a situation its faithful endured for centuries in Ireland as a whole and continue to do today, to a lesser extent, in the Six Counties.

What is the issue upon which we were being called to vote today? Although the NO campaign has tried to make us think it is, it is clearly not about whether two-gender households are better for raising children, whether surrogate birthing is right or wrong. It is not about whether we approve or homosexuality or not – although I suspect that is the real issue at base with many of the NO campaigners. In fact, it seems to me that it would be quite possible to disapprove of homosexuality and still to vote “Tá”, a question I will return to later. This might seem illogical, until we examine the actual issue upon which we are voting: do we agree with inserting a clause into the Bunreacht (Constitution) which states that a couple has a right to marry regardless of gender.

Presented with this question, which is a legal and Constitutional one, a number of issues arise, I think.

  1. What does the Bunreacht say at the moment about this question?
  2. What right has the State to define anything about sexual relationships?
  3. Are we in favour of equal civil rights for people?

1. It may come as a surprise to people that our Bunreacht, our Constitution, currently says nothing about the gender issue in marriage. There is nothing actually in our Bunreacht to prevent same-sex marriage. But the prohibition does exist in law. In other words, legislators at some point decided to propose and pass a law which confined the right (and rite) of marriage to heterosexual couples alone. Why did they do so if it was not an issue at that time? It seems to me that they were aware that same sex relationships did exist and strove to exclude those people from the rights enjoyed by others. This was the point of a number of other pieces of legislation against homosexuality which were not finally overturned until 1993 in this State (1982 in the Six Counties, 1980 in Scotland, 1967 in England and Wales) – five years after the European Court of Human Rights ruled that this state’s laws against male homosexual acts violated human rights.

According to the Catholic Church (and most other churches), despite the current legal situation with regard to homosexuality at the moment, it is still wrong. Well, the Catholic Church – and before them the established Anglican Church of Ireland – can have their views but they are not entitled, nor is any other church, to impose those on lay society, neither by legislation nor by other means. They are, of course, entitled to express their opinion – just like any other organisation.

“God and Nature say NO” was the caption on this placard paraded in O’Connell St. near the Spire, some weeks prior to the Referendum. Some young people are arguing with the placard-holder.

One of the many badges worn in support of a vote to insert the clause into the Irish Constitution (there was also an English-language one)

One of the many badges worn in support of a vote to insert the clause into the Irish Constitution. There was also an English-language one and each were to be seen nearly everywhere in public in the weeks prior to the Referendum.

So, going back to the beginning of the legal status of heterosexual marriage within our current legal system, it was introduced as an excluding measure, at a time when male homosexuality was illegal and subject to heavy punishment and when lesbianism was frowned upon (though not actually illegal for complicated reasons). In other words, a law excluding a group of people was passed at a time when any man who declared himself to be one of those people was subject to prison sentence and any woman who did so was subject to extreme opprobrium in society. What chance was there for their point of view to be represented? In the absence of such representation and informed opinion-making, how can any democrat defend the laws passed at that time?

2. Turning now to the question of what right the State has to make a ruling of any kind upon a sexual relationship between any two people, of either gender, it must be difficult indeed for anyone to justify that without recourse to church canon or prejudice. Those who do so tend to bring up questions of childcare, inheritance and taxation – in fact just about the same questions that were brought up in the Irish referendum on divorce in 1995. But childcare, or at least the financial aspect of it, can be regulated by the State without any interference whatsoever in the sexual relationship between the parents. Whether it does so fairly at the moment is another question which has no bearing on the concept. And inheritance – ignoring for a moment whether we agree with a political economy where land and other wealth may be appropriated by individuals or families and then legally handed on through their following generations — can also be managed without recourse to State regulation of marriage. Taxation, similarly. Were we to have a socialist society, one based on other principles than that which we now have, even those current excuses for state interference should no longer be even a consideration.  In fact, it is difficult to see any reason why even now the State continues to have a role in the formalisation of a sexual contract between two individuals or, indeed, in its dissolution, except perhaps in ensuring fair divisions of belongings.

3. Those opposed to insertion of the new clause into the Bunreacht have done so from a number of perspectives of opposition: to lesbianism and homosexuality on religious or other grounds; to formalising same sex relationships; to the alleged undermining of the “sanctity of marriage” or of “romance”; in opposition to surrogate child-bearing and raising of children by gay and lesbian parents ….

Those supporting the new clause have defended the naturally-occurring continuum of sexual preference; maintained that the “sanctity of marriage” will be the same between same-sex couples, as will “romance”; denied that it opens the way to or encourages surrogate child-bearing and raising of children within a gay or lesbian household ….

Who is right and who is wrong? There is no doubt that as long as cultural beliefs and practices have been recorded, homosexuality and lesbianism have existed within societies — sometimes tolerated, often repressed, on rare occasions celebrated. We see homosexuality occurring too among animals. If there is such a thing as “sanctity of marriage” and “romance”, why should same-sex couples have any less of it than heterosexuals? Surrogate child-bearing is already possible and the hugely unequal distribution of wealth in our society – and between even our society and many others – ensures it can and will continue while the rewards are financial. Raising of children within a same-sex household is already happening, even without surrogacy. It is more difficult for gay men at present, but in the case of a gay man having custody of his children through widowhood (yes, some gay men do marry women), or the mother deserting the children or being deemed unfit by a court to have custody, a gay man may bring up his children within a homosexual parent household.

But will this change in the Constitution (and therefore also in the law) make surrogacy and child-rearing by gay couples more likely to happen? Will it increase the frequency of its occurrence? I think the answer to that, logically, must be yes – despite all the denials of the “Vote Yes” camp. And I think some of them must know that. Slowly perhaps and who knows by how much – but logically it must tend to increase the chances. But is that so awful? I find the idea of surrogacy in general distasteful but isn’t that just a prejudiced reaction? Probably. Will children reared by same-sex parents experience uncertainty about their own sexuality? Some will probably and some won’t. And if they do, why should they not be able to resolve that in time – as children reared in heterosexual relationships also find themselves having to do? Is uncertainty about sexuality such a terrible thing? In a judgmental, prohibitive and penalising society, it can be – so let’s create a society that is the opposite.

However, I have to say that I think all those questions and considerations are beside the point. If marriage is to be a legal status, then it is a civil right for everyone who is at the age of consent (and of sufficient mental ability to know to what they are consenting — in so much as any one of us was or does!). The right to same-sex marriage, as a civil right, should be supported even by people who do not approve of homosexuality, or marriage, or surrogacy, of child-rearing in a homosexual household. As for myself, someone who seeks revolutionary social, economic and political change, who wishes to see the overthrow of this State, a revolutionary as opposed to a reformist, I must nevertheless support reforms that extend civil rights, even when not led from below …. and so I voted “TÁ”.

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