Accepting the Bill would cause constitutional issues and be politically dishonest, writes Michael McDowell.
I have been taken to task for not accepting Labour's civil union Bill. The Dáil amended the second reading resolution to allow more time for a comprehensive civil partnership Bill to be brought before the House and to await the outcome of the Zappone appeal pending in the Supreme Court.
I have for the last two years taken steps to develop a legislative proposal for the recognition of "civil partnerships" between persons who are not married but who are co-habiting domestically in a long-term relationship of inter-dependency, whether that relationship is heterosexual, homosexual or non-sexual. The idea of civil partnerships is to enable the parties to engage in such relationships as to create between themselves, and between themselves and society, a recognised set of rights and duties in order to achieve functional fairness and equity. It is not to create a parallel system of statutory marriage.
The Constitution requires the State to protect marriage between a man and a woman with special care and to protect it against attack. The constitutional advice available to me (with which I agree) is that it is not open to the State to create by law a status for a relationship which has all the rights and duties of marriage under our law, but which is not a marriage in the sense recognised by the Constitution.
The All Party Committee on the Constitution in a recent report recommended "no change" in the constitutional definition of marriage and I have proceeded on the basis that no such change is contemplated or would succeed. It is my judgment, and that of the Taoiseach, that a referendum to change the status or meaning of the family in the Constitution would not only be defeated but would be extremely divisive and counter-productive at this point.
The civil partnership project, therefore, is based on the present constitutional context and would allow parties to such partnership freedom as to agree between themselves matters such as inheritance rights, next of kin rights, maintenance rights and duties for each of those and arrangements in relation to dependants which would, subject to the Constitution, be given legal recognition and be enforceable, if necessary, by the courts.
Other issues, such as the recognition of civil partnership from the point of view of taxation, pension entitlements and social welfare payments, would obviously arise. So too would the issues of termination of partnership and the rights of the parties where termination occurred.
To enable Government to consider the policy options, the Law Reform Commission and the Group on Domestic Partnerships, chaired by Anne Colley, have presented very useful papers on rights of co-habitants and on options for a civil partnership law.
I have made no secret of my broad approach to the issue of civil partnership and have consistently signalled that my intention was to generate proposals along these lines, so as to ensure as far as possible fairness for all unmarried co-habitants and their dependants, while respecting the constitutional status of marriage.
The Labour Party idea of a civil union, as distinct from my concept of civil partnerships, was confined to "conjugal relations" exclusively between persons of the same sex and provided that the parties to a union would "receive the benefit and protections and [ be] subject to the responsibilities of parties to a marriage".
The Labour Bill would create a relationship for gay people which differed only in name from marriage. No other relationship for co-habitants would be recognised under this Bill.
The Bill would also apply all our existing marriage laws of nullity, separation, divorce, child custody, maintenance, family homes and property to that relationship. For instance, the relationship could not be terminated by mutual consent until four years had elapsed during which the parties lived separately, and unless the court was satisfied that reconciliation was an impossibility. A gay couple who did not want such a marriage-type relationship would receive no recognition for any agreement between themselves short of such a union.
The Labour Bill also proposed to confer full adoption rights on gay parties to a civil union and, much more controversially, to oblige the State to consider such applicants for adoption on exactly the same basis as a married couple. The Bill would have outlawed any State policy in favour of giving preference to married heterosexual couples in the adoption system.
Moreover, the Attorney General has advised me that it would not be open to me to either make such proposals or to adopt them having regard to the provisions of the Constitution. Because I was advised that the central scheme of the Labour Bill was incompatible with the Constitution, and because it was not compatible with the civil partnership proposal on which I am working, I tabled the amendment postponing further consideration.
In addition, there is the question of the Zappone appeal currently pending before the Supreme Court. If Ms Zappone wins her case, there will be very clear implications for what it will be possible to do in relation to same-sex relationships in our domestic law. Conversely, if she loses her appeal, and depending on the reasons given by the Supreme Court, the meaning and implication of the constitutional protection for the family may well dictate the limits to which a civil partnership law may be developed.
Fintan O'Toole argued in response to John Kenny's letter to the Editor (February 28th) that the Zappone appeal and its outcome is irrelevant to acceptance of the Labour Party Bill. I profoundly disagree with that assertion.
All of the above considerations, especially the need to create space for comprehensive proposals for civil partners which, unlike the Labour Party Bill, would protect heterosexual, homosexual and non-sexual co-habiting relationships alike, strongly suggest to me that it would be a mistake and politically dishonest to accept the Labour Bill. It would be especially wrong to do so in the context of legal advice that the central scheme of the Labour Party Bill was unconstitutional.
Far from engaging in "sleeveenism" or equivocation, I regard it as my duty to approach proposals for legislation in this area in a manner that upholds the Constitution in spirit and in letter, and in a manner which attempts to do justice to all co-habitants.
Equality is not about the absence of difference. It is about fairness in dealing with difference.
Michael McDowell is Tánaiste and Minister for Justice, Equality and Law Reform