Civil marriage is a secular and civil contract. The point of our civil marriage law is to grant status to, provide a stable framework for, and bring order to the legal relationships of committed couples by spelling out their rights and responsibilities as to one another, their property and their children, if they decide to have children.
Many same-sex couples wish to enter into a formal, legally binding marital relationship. But current law reflects the view that the right to marry consists only of the right to marry an individual of the opposite sex.
The proposed constitutional amendment will enshrine the principle of the equal dignity of human love for same-sex couples and opposite-sex couples alike. It will recognise that the right to marry, for moral equals, is to marry an individual of one’s choice, and that the right applies to same-sex marriage just as it does to opposite-sex marriage.
Opponents of the proposed amendment argue that opposite-sex marriage and same-sex marriage are mutually exclusive.
Responsible procreation
First, they say present law furthers the goal of responsible procreation by restricting marriage to opposite-sex couples. This does not make sense. Current law does not prohibit opposite-sex couples from marrying, even if they do not procreate because of age, physical impairment, infertility or choice. In 1973, the Supreme Court upheld the right of married persons to have access to contraceptives to control fertility.
Although it is not clear what the opponents of same-gender marriage mean by “responsible procreation”, when childless same-sex couples decide to have children, they necessarily do so after careful reflection and at considerable expense. This is because for them to raise a family requires either lengthy and intrusive adoption procedures or assisted reproduction. In fact, same-sex couples are as capable of responsible procreation as are opposite-sex couples.
Second, they claim that a father-mother marriage is essential for effective parenting. There is no scientific evidence that parenting effectiveness is related to the parents’ sexual orientation. The American Psychological Association endorses the proposition that same-sex parents are equally capable at parenting as opposite-sex couples. These couples have children for the reasons others do – to love them, to care for them, to nurture them.
Moreover, children raised by same-sex parents are as likely to be emotionally healthy, well-adjusted and educationally and socially successful as those raised by opposite-sex parents. Same-sex parents nurture their children in the same wholesome environment as opposite-sex parents.
Parents’ genders are irrelevant to children’s developmental outcomes. And the notion that children need a mother and a father to be raised soundly is based on stereotype and not fact.
Third, a related objection opponents make is that current law should be preserved because it legitimates the “complementary” roles of “mother” and “father” in raising their children. The proposed amendment, they insist, transmits the message that men and women are interchangeable.
This gender-focused argument carries a baggage of archaic sexual stereotypes. It turns on outdated prejudicial misconceptions about the role of women in the home rather than in the workplace and world of ideas. It presumes that the father has the primary responsibility to provide a home and its essentials, while the mother is the domestic centre of home and family life. The implication is that men and women “naturally” behave differently from one another in marriage and as parents.
Justice demands that no person should be forced into a predetermined role on account of sex.
Settling our definition of marriage on the basis of such stereotypes limits, and is meant to limit, the choices men and women make about the trajectory of their own lives, choices about work, parenting, dress, driving and marriage. It implicitly relies on generalisations about the way women are – or the way men are – as a basis for defining marriage.
In a modern democracy, enforcing such archaic gender-role stereotypes is not a legitimate political purpose.
Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure. But it does prevent children of same-sex couples from enjoying the important benefits that flow from the assurance of a stable, equal-status, family structure in which children will be nurtured, educated and socialised. If marriage is a good setting for rearing children, then it is good for the children of same-sex couples as well.
There is no justification for penalising children by depriving them of the benefits of belonging to a married family because some people disapprove of their parents’ sexual orientation.
True, the referendum arouses sincerely felt religious beliefs both in favour of and against same-sex civil marriage. Religious believers should recognise that the very democratic principle that protects their freedom to find ultimate answers to the meaning and mystery of life and to live a life of value that makes life worthwhile – respect for the moral independence of persons – is the principle that ultimately justifies the right of same-sex couples to marry.
Voting for the amendment would not interfere with the religious freedom of religions or clergy because no religious organisation will have to change its doctrines to accommodate same-sex couples. And no religious clergy will be required to solemnise a marriage against his or her religious beliefs.
All persons have a fundamental stake in advancing human equality. Historically, marriage was an unequal institution that imposed different rights and obligations on men and women. The law treated husband and wife as one person and incorporated a wife’s legal existence into her husband’s.
At one time, a wife was incapable of making binding contracts. She could not sue or be sued without her husband’s consent. She could not be guardian of her children. She was denied the capacity to hold or transfer property. She was the sexual property of her husband. He could chastise her.
With the legal transformation to equality in marriage, gender no longer determines the essential structure of marriage. Marriage under civil law is now a union of equals. The gender-based classification of spouses in relation to the right to marry is a vestige of sex-role stereotyping.
Human rights
According same-sex couples the right to marry would enhance the integrity of the profoundly moral human-rights project of achieving true human equality.
Some might argue that our law does not discriminate against same-sex couples because it allows same-sex civil partnerships that provide most of the benefits of marriage. That argument upends itself. If there is no real difference between the consequences of marriage or a civil partnership, then why should marriage be reserved for opposite-sex couples?
Our community must affirm the love and commitment of same-sex couples and of opposite-sex couples in equal measure. The persistence of prejudice against same-sex couples does not rob discrimination of its unjust sting.
By recognising the right of same-sex couples to marry under civil law we would dignify same-sex families and opposite-sex families alike, and, in so doing, we would dignify our community, which is based on the principle of equal citizenship.
Tom Cooney was a special adviser to former minister for justice and equality Alan Shatter TD