Prime Time's Katie Hannon put three key questions on the same-sex marriage referendum to the Referendum Commission's Chairperson, Mr. Justice Kevin Cross.
1. If the Marriage Referendum is passed will it be constitutionally permissible to favour an opposite sex married couple over a same sex married couple in any laws, regulation, or policy of a statutory body, governing the adoption and fostering of children?
There are a number of issues involved:
The best interests of the child
It is already a Constitutional requirement that the best interests of the child must be the paramount consideration in any proceedings relating to issues such as adoption and fostering of children.
No couple or no individual has a Constitutional or legal right to adopt or to foster a child.
Treating opposite sex and same sex married couples differently
If legislation was passed which treated same sex married couples and opposite sex married couples differently, and if that legislation was challenged, the Courts would have to decide whether the Constitution permitted such different treatment. The following are relevant considerations:
If the Marriage Referendum is passed, the Constitution will provide for a single institution of marriage available to couples of the same sex and couples of the opposite sex.
As well as considering Article 41 as amended in this referendum, the Courts would also have to consider Article 40.1, which provides that all citizens shall, as human persons, be held equal before the law.
As the referendum envisages only one constitutional status of marriage, any law which treated one type of married couple differently from another would be likely to be very carefully scrutinised by the Courts and the circumstances in which such different treatment could ever be permitted would likely be exceptional.
Were such different treatment possible, and such laws introduced, they would be upheld only if they did not create invidious or arbitrary discrimination between opposite sex and same sex couples. This means – in practical terms – that the reason for the different treatment would have to be a very good reason, which served a legitimate legislative purpose. The difference in treatment would also have to be relevant to its purpose and both opposite sex and same sex couples would have to be treated fairly. Whether these requirements are satisfied in any given circumstance would depend on the evidence presented.
2. If the Marriage Referendum is passed, will it be constitutionally permissible to favour opposite sex married couples over same sex married couples in any laws, regulations, or policy of a statutory agency, governing surrogacy and assisted human reproduction?
There are no specific Constitutional provisions on surrogacy or assisted human reproduction and this referendum does not propose introducing any such provisions.
Surrogacy is not regulated in Ireland at present. Laws have been passed dealing with assisted human reproduction but are not yet in effect.
If legislation was passed which treated same sex married couples and opposite sex married couples differently, and if that legislation was challenged, the Courts would have to decide whether the Constitution permitted such different treatment. The following are relevant considerations:
If the Marriage Referendum is passed, the Constitution will provide for a single institution of marriage available to couples of the same sex and couples of the opposite sex.
As well as considering Article 41 as amended in this referendum, the Courts would also have to consider Article 40.1, which provides that all citizens shall, as human persons, be held equal before the law.
As the referendum envisages only one constitutional status of marriage, any law which treated one type of married couple differently from another would be likely to be very carefully scrutinised by the Courts and the circumstances in which such different treatment could ever be permitted would likely be exceptional.
Were such different treatment possible, and such laws introduced, they would be upheld only if they did not create invidious or arbitrary discrimination between opposite sex and same sex couples. This means – in practical terms – that the reason for the different treatment would have to be a very good reason, which served a legitimate legislative purpose. The difference in treatment would also have to be relevant to its purpose and both opposite sex and same sex couples would have to be treated fairly. Whether these requirements are satisfied in any given circumstance would depend on the evidence presented.
3. If the Marriage Referendum is passed, could a same sex couple successfully challenge any future restrictions on surrogacy and donor assisted human reproduction, even if that restriction also applied to opposite sex couples, on the basis that it is interfering with their constitutionally-protected right to create a family under this amendment?
The courts have held that married couples have the right to beget children. However, this does not necessarily mean that the State must facilitate a couple who cannot have children to do so. For example, it has never been decided that the Constitution confers an entitlement on opposite sex couples to fertility services, assisted human reproductions services or surrogacy.
