NEWS FROM THE CELTIC LEAGUE
One of the unconsidered and undiscussed consequences of redefining marriage and the family to cover same-sex couples in the Irish Constitution is that it would alter the politico-legal effect AT EU LEVEL of one of Ireland’s Lisbon Treaty Protocols.
These were sold to the people in the 2009 Lisbon Two referendum to persuade them to turn their No vote in Lisbon One into a Yes vote in Lisbon Two.
This is because the Lisbon Treaty, which is now the EU Constitution, makes the EU Charter of Fundamental Rights part of supranational EU law.
Lisbon empowers the EU Court of Justice (ECJ) to lay down common human rights standards across all 28 EU States, including for marriage, the family and education. This will certainly happen in the years to come.
Article 9 of the EU Charter lays down a right to marry that is silent as to gender. By contrast, Article 12 of the European Convention on Human Rights, which also binds Ireland and which covers 47 European States, sees marriage as taking place between men and women only.
In interpreting the European Convention, the Court of Human Rights has decided that, as things stand today, there is NO RIGHT to same-sex marriage under Article 12 (see the Court judgement in Hamalainen v. Finland, 2014): “While it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples.”
This case was ignored by the Irish Human Rights and Equality Commission in its policy statement on same-sex marriage. The Commission effectively advised the Government, the political parties and the general public that there is a right to same-sex marriage under the European Convention on Human Rights, when there is no such right.
IRELAND ‘S PRINCIPAL OFFICIAL ADVISORY BODY ON HUMAN RIGHTS MATTERS HAS THUS EFFECTIVELY MISLED THE GOVERNMENT, THE POLITICAL PARTIES AND THE GENERAL PUBLIC ON THIS VERY IMPORTANT MATTER AFFECTING THE STATE CONSTITUTION.
There is serious tension between the EU Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg over the interpretation of the EU Charter and the European Convention respectively as regards sensitive human rights areas such as marriage and the family.
As the EU seeks to shift ever more powers from its Member States to Brussels , it is probable that the human rights provisions of the EU Charter will ultimately prevail.
Giving constitutional status to same-sex marriage in Ireland would therefore clear the way for the imposition of same-sex marriage on 500 million EU citizens as a matter of supranational EU human rights law, to be laid down in due time by the European Court of Justice (See the Annexed Note below for further legal details).
THE PROPER AND MOST EFFECTIVE WAY OF BEING FAIR TO LGBT PEOPLE would be to put civil partnership into the Irish Constitution – parallel to the status of marriage as it has always been understood – although constitutional partnerships between affectional same-sex “partners” sharing a common domicile who desire such contractual arrangements should logically cover platonic friends and siblings also.
At present civil partnership is a matter of statute law in the Dáil and Seanad only.
Otherwise redefining marriage and the family in the Irish Constitution, as the Government proposes, would allow homosexuals to have BOTH civil partnership and marriage, while heterosexuals would have marriage only – giving rise to a new social inequality.
There is no good reason why the Irish Constitution should not endorsement and give formal “blessing” to contractual arrangements between same-sex “partners” of all kinds , as broadly benefiting society and the common good, but that would have to be a matter for another day, once the same-sex marriage amendment is defeated.
Such ideas were never even considered in the Government’s rush to hold this ill-considered referendum, which was initiated primarily to boost the Labour Party’s declining poll ratings and and which Enda Kenny latched on to cement the current Coalition.
Building on civil partnership in the manner suggested would be a creative social policy initiative which would do justice to the 1-2% of the population who are homosexual, without re-defining marriage for the 98-99% who are not – with many unconsidered and unintended consequences, such as the legal effect mentioned on Ireland ’s first Lisbon Treaty Protocol.
Of the 198 States in the world, only 17 permit same-sex marriage. In these 17 cases it was introduced by Parliamentary vote or by Court order. This means that laws on marriage and family relations can be easily amended and changed by national Parliaments to take account of unforeseen circumstances. We have already experienced the drawbacks of excessive constitutional rigidity in relation to the abortion issue, the euro-currency, land-ownership rights and much else.
Former Supreme Court Justice Mr Hugh O’Flaherty wrote in the Irish Independent some time ago that the proper place to define marriage was in statute law, not in the Constitution.
NO COUNTRY IN THE WORLD HAS PUT SAME-SEX MARRIAGE INTO ITS WRITTEN CONSTITUTION, because of the permanent, irreversible and unforeseeable consequences of such a step.
On social policy grounds we should not do that either on Friday week, 22 May.
Associate Professor Emeritus in Social Policy, Trinity College Dublin ;
Director, The National Platform EU Research and Information Centre.
ANNEX LEGAL NOTE : Changing the legal effect of one of Ireland ’s Lisbon Treaty Protocols
The Lisbon Treaty, which is now the EU Constitution, makes the EU Charter of Fundamental Rights part of supranational EU law and empowers the EU Court of Justice(ECJ) to lay down common human rights standards across all 28 EU Member States.
The first Lisbon Treaty Protocol, which was especially agreed for Ireland to induce Irish people to ratify the Lisbon Treaty in 2009, following their rejection of it by referendum in 2008, protected Ireland’s constitutional human rights positions in several areas as follows:-
“Article 1: Nothing in the Treaty of Lisbon attributing legal status to the Charter of Fundamental Rights of the European Union, or in the provisions of that Treaty in the area of Freedom, Security and Justice affects in any way the scope and applicability of the protection of the right to life in Article 40.3.1, 40.3.2 and 40.3.3, the protection of the family in Article 41 and the protection of the rights in respect of education in Articles 42 and 44.2.4 and 44.2.5 provided by the Constitution of Ireland.”
This was attached to the first EU Treaty subsequent to Lisbon , the Croatian Accession Treaty, to avoid having to reopen the Lisbon Treaty itself at the time, and it came into force in 2014.
This first Irish Lisbon Treaty Protocol means that EU human rights law cannot lay down supranational human rights standards for all 28 EU Member States if they conflict with the Irish constitutional provisions specified in the Protocol. This is because EU supranational human rights law must be the same for all Member States.
This Irish Protocol as it stands is therefore an insurmountable legal obstacle to the imposition of same-sex marriage on 500 million EU citizens as a matter of European law decided by the EU Court of Justice, with complex accompanying changes to family law and education.
Britain and Poland had reservations also regarding the effects of making the EU Charter of Fundamental Rights legally binding under the Lisbon Treaty (v. Treaty on European Union, Protocol 30). Since then Britain has introduced same-sex marriage by Act of Parliament, while Poland can bring it in by normal statute law and does not require a referendum.
Putting same–sex marriage in the Irish Constitution would therefore remove the principal legal obstacle to same-sex marriage being laid down in due time as a supranational human right for all 28 EU Member States under the Lisbon Treaty.
This is the reason why interests in the EU itself and same-sex marriage advocates nationally and internationally are seeking a change by referendum in Ireland , thereby bringing about a permanent constitutional change here and removing this Irish Lisbon Protocol as an obstacle to supranational EU law.
Ireland is bound by both the European Convention on Human Rights and the EU Charter of Fundamental Rights. The Lisbon Treaty (Art.6.2 TEU) provides for the EU itself to accede to the European Convention, separately from its Member States, although “Such accession shall not affect the Union ’s competences as defined in the Treaties.”
Article 12 of the European Convention regards marriage as a male/female matter: “Men and women of marriageable age have the right to marry and to found a family…”
Article 9 of the EU Charter of Fundamental Rights is however silent as to gender. It reads: “The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.” Article 9 is thus open to making same-sex marriage a human right under EU law.
Article 52 of the EU Charter provides that in so far as the Convention on Human Rights and the Charter refer to corresponding rights, their meaning and scope shall be as laid down in the Convention, but “This provision shall not prevent Union law providing MORE EXTENSIVE protection.” Re-defining marriage to include same-sex couples could plausibly be argued to be just such an extension.
In applying the European Convention, the Court of Human Rights has decided that, as things stand today, there is no right to same-sex marriage under Article 12 (see the Court judgement in Hamalainen v. Finland, 2014): “While it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples.”
Reference to this case was ignored by the Irish Human Rights and Equality Commission in its policy statement on same-sex marriage. The Commission effectively advised the Government, the political parties and the general public that there is a right to same-sex marriage under the European Convention on Human Rights, when there is no such right.
However, the jurisprudence of the European Court of Human Rights strongly suggests that once a sufficient number of advanced countries have moved in a particular direction, a consensus will be deemed to have been established and the rest will be obliged to follow. Several EU countries have already introduced same-sex marriage by parliamentary vote.
In the coming years there will certainly be pressure to assimilate the human rights provisions of the European Convention on Human Rights to the EU Charter of Fundamental Rights as regards marriage, the family and education – thus clearing the way for a supranational EU human rights regime in these areas under the Treaty of Lisbon.
As well as there being no right to same-sex marriage under the European Convention on Human Rights, the attempt to make gender identity and sexual orientation as regards marriage into new categories of non-discrimination has been repeatedly rejected by the UN Human Rights Council and other UN bodies in recent years.
A basic objection to the conferral of a human rights competence on the EU, whatever one’s view as to the content of human rights, is that such a development is wholly unnecessary, as all 28 Member States are already bound by the provisions of the European Convention on Human Rights. Moreover, there are already human rights provisions in the national Constitutions of each Member State .
The only reason for the EU arrogating to itself a human rights competence would seem to be the desire to build itself up further as a quasi-federal State. The historical experience of both national and multinational Federations has been that common human rights standards, enforced by a central legislative body and a federal Supreme Court, can be a powerful weapon in subordinating national courts and Constitutions to
The constitutional history of the USA provides ample evidence of the radical “federalizing” potential of the fundamental right jurisdiction of that country’s Supreme Court.
(THIS ARTICLE HAS BEEN SUBMITTED BY THE IRISH BRANCH –PROFESSOR COUGHLAN WHO WROTE THE ARTICLE IS A LONG SERVING MEMBER OF THAT BRANCH)
J B Moffatt (Mr)
Director of Information
(Please note that replies to correspondence received by the League and posted on CL News are usually scanned hard copies. Obviously every effort is made to ensure the scanning process is accurate but sometimes errors do occur.)
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