Aug 5, 2010
CPCROCA 2010: de Londras on Civil Partnership and (Marriage) Inequality
In this contribution to our blog carnival on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, regular HRinI contributor Fiona de Londras considers the implications and burdens of introducing civil partnership without liberalising civil marriage.
It goes without saying that the Civil Partnership and Certain Rights and Obligations Act 2010 is, in itself, a significant if not monumental piece of legislation for a country that only decriminalised male homosexual sex in 1993. However, even in the midst of the celebrations that rightly accompanied the passing and signing of the Act, it is appropriate to take pause and think about the implications and burdens of introducing a system of civil partnership without opening marriage up to same-sex couples.
One of the main objections to the failure to recognise same-sex relationships in Irish law was not only that it excluded people from a range of rights and obligations that attach to marriage (most of which are now attached to civil partnership), but also that recognising opposite-sex relationships without recognising same-sex partnerships constituted an inequality. In other words, it sent out a value-laden message from the State about what kinds of intimate adult connections are and are not worthy of recognition by the State. It is important to recognise that the introduction of civil partnership does not remove this inequality—it may lessen it somewhat; it may set in train a sequence of events in which it is eventually neutralised; but it does not remove it. Rather it constitutes the enshrinement of inequality in law without, in my view, the State properly having discharged the burden of proving that such inequality is justified.
The argument that was most relied upon in an attempt at justification was based on the Constitution. The Irish Constitution protects the institution of marriage. It does not—it must be said—define marriage as being exclusively between a man and a woman (that is done in the Civil Registration Act 2004) and it is open to the Supreme Court to declare in the future that the constitutional concept of marriage is not necessarily so limited. But nevertheless the Government claimed that marriage could not be liberalised to include same-sex couples without the introduction of a constitutional amendment to that effect. Importantly, however, holding such a referendum (even if it were necessary) was never seriously proposed or, it seems, considered by the Government. If the Constitution was the impediment to marriage equality, and the dividing line between allowing the perpetuation of that inequality and removing it was a referendum of the People, then the Government is surely under an obligation to discharge some kind of burden in justifying its failure to hold that referendum. Saying that something would be unconstitutional was both relatively speculative in this case and used as an excuse to avoid a referendum which would certainly have been divisive, and may even have been ugly, but would not have been the first divisive and ugly referendum to be held in Ireland (abortion, divorce, Lisbon II all fell into both categories).
Not only, however, does introducing civil partnerships without opening up marriage create separate categories of families and reinforce inequality between opposite and same-sex couples, but it also maintains a frankly arcane situation where opposite-sex couples are more or less forced to marry if they wish to avail of the full range of rights and obligations available in family law. Civil partnership will not be available to opposite-sex couples (presumably to try stave off arguments that the institution of marriage is unconstitutionally endangered) although they will be in a position to avail of certain presumptive rights and obligations on the basis of cohabitation if they choose to live together. Marriage therefore retains primacy thereby nudging opposite-sex couples towards it, but also retains exclusivity preventing same-sex couples from availing of it.
Some years ago I was involved in the production of a report for the ICCL entitled Equality for All Families in which we proposed not only the liberalisation of civil marriage but also the creation of a menu of options where all couples—whether same-sex or opposite-sex—could choose to marry, enter into a civil partnership/civil union, avail of presumptive rights based on cohabitation, or remove themselves entirely from legal regulation of their families and relationships. This still seems, to me, to be the best possible situation giving people autonomy, options and respect for their relationships in the form chosen freely by all couples. It also, however, seems as far off now as it did four years ago.
The CPCROC Act 2010—while clumsily named—is undoubtedly a step forward, but it does not represent equality. Neither does it embrace the liberal principles of autonomy and respect as fully as it ought to. The government may be convinced that this Act is as far as it could reasonably go, but it has failed in my view to discharge the burden of justifying inequality in this case or of justifying its refusal to hold a referendum on family diversity that would be fitting in 21st century Ireland.
Readers who agree might be interested in the March for Marriage 2010, taking place in Dublin on August 22 of this year.
“a frankly arcane situation where opposite-sex couples are more or less forced to marry if they wish to avail of the full range of rights and obligations available in family law”
Yes – one must enter into a contract in order to be protected by it! I don’t find that arcane in any way.
“Civil partnership will not be available to opposite-sex couples”
Yes, this is of concern and reaches at the heart of the matter. One of the great leaps forward of the new Law is that Civil Partnership as a concept is brought forward and is one that needs to replace marriage as a civil matter – NOT the other way around. Marriage should not have primacy over civil partnership, rather one belongs in the private sphere and the other in public, now we have created a situation where I am denied the right to a Civil partnership even though I would prefer this to a state-sponsored marriage.
Incidentally, what about polygamy? Should it be legalised now as well, now that we have established equality and freedom of choice as the main concern in matters of the family?
‘what about polygamy. Should it be legalised now as well, now that we have established equality and freedom of choice as the main concern in matters of the family?’
That simply isn’t the case at all. The CP bill simply provides an alternative means for a couple to legally commit to each other in a public manner. (It is unequal as it is limited to same-sex couples setting up same-sex couples as being inferior to opposite sex couples). This is not a radical departure. Polygamy is and would be. Arguments against polygamy include an acknowledgment of the lesser ability of the bread winner to provide for each successive partner and the potential progeny that might arise…
Another argument against polygamy is that Westerners tend to suspect that coercion is a factor, but also because simply there won’t be enough women to go around if the rich older men hog them all
(not being facetious, there is a sociological theory that claims polygamy as the cause of social upheaval and even terrorism). Far from using the slippery-slope argument, I’m merely suggesting that it will be hard to continue to legislate against polygamy in a pluralistic (no pun intended) society. I see that the CP Bill does clarify that CP is between two individuals only.
“Arguments against polygamy include an acknowledgment of the lesser ability of the bread winner to provide for each successive partner and the potential progeny that might arise…”
And that sounds suspiciously like an argument against allowing a divorcee to re-marry. And, indeed, at an extreme, an argument for preventing them from having more children.
Fair point!
But I guess everybody – including the prospective future spouse – knows where they stand when maintenance payments to the previous partner/family are clearly defined and they can make a decision based on this.
I am not sure that this really has anything to do with polygamy. To introduce polygamy would really fundamentally shift the nature of marriage as a relationship of solemn exclusivity and where we expect exclusivity and faithfulness (including in law) between two people. This is why same-sex marriage does not, in my view, fundamentally alter the nature of marriage in the same way that polygamy (for example) would, for the fundamental bond between two people of age still exists. My point, more fundamentally, is in any case that if we are to continue to exclude same-sex couples from that legal institution then the State should have to discharge a relatively high level of proof to show this is justified on an objective basis and, in my view, this has not been done here in Ireland.
Polygamy falls into the argument when one takes an evolutionary approach to marriage, which is really what the same-sex marriage argument is about. We could argue that marriage has evolve past polygamy and coercion, in which case I would also like to argue that marriage is evolving from the public sphere to the private.
It’s also struck me that, considering arranged marriages have been the norm throughout history and that such arrangements are concluded between the respective fathers of bride and groom, it could be claimed that marriage has always been a contract between two men
Legal recognition of marriage in many jurisdictions (think Canada and S. Africa for example) has become less about the definition of a social institution and more about selecting intimate arrangements which are understood as suitable for or requiring regulation. We tend to think more and more that the state’s primary focus, in the normal run of things, should not be on the moment of contracting marriage but on the consequences of marriage later down the line. With that in mind, the state identifies relationships which ought to attract certain entitlements and duties, and into which it ought to be able to intervene in the event of relationship breakdown, to secure the interests of vulnerable individuals. If we relegate the symbolic recognition issue to second place, and think instead about legal recognition of relationships as a route to rights and protection, sound arguments about what is ‘fundamental’ to marriage (‘it has to have only two people’, ‘it has to have one person of each sex’) as a threshold condition to recognition (and why are these conditions exclusively tested at the moment of contracting? What about the nature of the subsequent relationship?) become more complicated to make. I would tend to advocate the (perhaps limited) legal recognition of polygamous marriage because it allows courts to deal with important issues of distributive justice upon death or divorce. (Actually I would tend to advocate a massive rethink of how we make law about the family but I’ll take what I can get).