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Marriage Referendum Public Forum

On Tuesday 19 May 2015 at 6.00pm in the Edmund Burke Theatre in the Arts Building, Trinity College Dublin will host a public forum on the upcoming Marriage Referendum, chaired by the Registrar, Professor Shane Allwright. 

Wedding Rings

The event is open to the entire Trinity community (students, staff and alumni) as well as to the local community and general public, but because seating is limited you must email: ForumMarriageRef@tcd.ie in advance to reserve a seat.

As an institution, the Board of Trinity has decided not to adopt a formal position on the referendum.  The Board encourages staff, students and graduates to participate in the campaign. The public forum is an example of Trinity providing a public space where important national issues can be debated and discussed and all are welcome to attend. 

Overview of the Referendum

by Professor Oran Doyle, Head, School of Law, Trinity College Dublin

Article 41 of the Constitution is headed ‘The Family.’ More than perhaps any other provision of the Constitution, it reflects Roman Catholic teaching of the 1930s, principally Pope Pius XI's 1930 Encyclical on Christian Marriage, Casti Connubii. The Constitution perceives the Family as a pre-civil entity, recognized by the State. Article 41.1 speaks of the Family as ‘the natural primary and fundamental unit group of Society.’ Article 41.3.1° pledges the State to guard with special care the institution of Marriage, on which the Family is founded. Article 41.3.2°, introduced in 1996, specifies the circumstances in which a divorce can be granted.

Although the Constitution does not define marriage, in Murphy v Attorney General [1982] IR 241 (the married women’s taxation case), the Supreme Court held that marriage was the permanent, indissoluble union of man and woman. In the post-divorce case of CT v DT [2003] 1 ILRM 321, a Supreme Court judge described marriage itself as a solemn contract of partnership entered into between man and woman, in principle for life. Although some academics have contested this, the underlying philosophy of Article 41, reflected in repeated judicial statements, means that it would be unconstitutional for the Oireachtas to legislate for same-sex marriage. This is why a referendum is necessary if same-sex marriage is to become legal in Ireland.

The Government is asking us to introduce a new Article 41.4 into the Constitution:

Marriage may be contracted in accordance with law by two persons without distinction as to their sex.

The effect of this wording is to reverse the constitutional prohibition on same-sex marriage. The sex of the parties will no longer be relevant to their capacity to enter into a marriage with each other. However, marriage is limited to a contract between two people: the Constitution would therefore for the first time explicitly prohibit polygamy. Finally, the marriage contract is stated to be subject to legal regulation. This means that the Oireachtas can, for instance, continue to impose age requirements and notice requirements as well as prohibiting close relations from marrying. Nevertheless, the explicit statement that marriage may be contracted by two persons without distinction as to their sex means that same-sex marriage must be permitted if the referendum is passed.

The wording does not refer to ‘civil marriage’ but this is because the Constitution has only ever regulated civil marriage. The language of ‘contracting’ and ‘in accordance with law’ both point to the civil context. Article 41.3.2° allows a court to grant a dissolution of marriage, but no-one has ever suggested that this allows a court to dissolve a religious marriage and compel a religious community to allow for remarriage. For precisely the same reason, the constitutional authorization for same-sex marriage applies only to civil marriage. This is consistent with the strong protection for religious freedom in Article 44. Churches cannot be required to recognize or solemnize same-sex marriages.

The Irish wording originally proposed was as follows:

Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.

One way of reading this sentence is that it prohibits opposite-sex marriage. This is not the only interpretation, however, and it is not possible to read the English text in that way. Moreover, in interpreting other provisions approved by referendum, the courts have always looked to the constitutional issue that a referendum sought to address. It is inconceivable that the courts would have interpreted this referendum, if it were passed in the originally proposed terms, as prohibiting opposite-sex marriage. Nevertheless, the Dáil amended the Irish wording before it approved the Bill. It now reads:

Féadfaidh beirt, gan beann ar a ngnéas, conradh pósta a dhéanamh de réir dlí.

At the time of writing, the Bill is before the Seanad. It must be passed by both the Dáil and the Seanad before it can be put to the People in a referendum. Senators Ronan Mullen and Jim Walsh have proposed a number of amendments. However, given the support of the main political parties, it seems likely that the Seanad will pass the Bill in the form approved by the Dáil.

The Government has published its General Scheme of Marriage Bill 2015. If the Referendum is passed, it is highly likely that the Government will formally draft a Bill reflecting this General Scheme, although it is not constitutionally required to do so. Therefore, although we are not voting on the Marriage Bill, it is appropriate to consider this General Scheme when deciding how to vote in the Referendum.

The main change that the Marriage Bill would introduce is the simple deletion of section 2(2)(e) of the Civil Registration Act 2004, which provides that there is an impediment to marriage if both parties are of the same sex. Any prohibitions on marriage between members of the opposite sex based on consanguinity or affinity would be construed as applying to same-sex marriages also. The Bill would provide that religious bodies could not be obliged to recognise or solemnise any particular type of marriage. The change of the gender of a spouse would have no effect on the legal validity of a marriage. The other changes proposed by the General Scheme largely concern the substitution of the word ‘spouses’ for ‘husband and wife’ where that phrase appears in other legislation. Finally, the Bill would discontinue the institution of Civil Partnership. Existing civil partners would be allowed either to continue in that relationship or get married to each other, thereby dissolving the civil partnership.

Speaker Biographies

Ms Marguerite Bolger, Senior Counsel
Marguerite Bolger SC is a Senior Counsel at the Irish Bar specialising in employment law. She is a member of the Incorporated Council for Law Reporting of Ireland, the Editorial Board of the Irish Employment Law Journal and the Employment Law Reports and a founder member of the Employment Bar Association.

Marguerite is the author of a number of books and articles on employment equality law, most recently Employment Equality Law (co-authors Bruton and Kimber) published by Round Hall Press in 2013. She is a regular contributor to the Marriage Equality 2011 Report on the legal short comings of civil partnership.

Senator and Professor John Crown, BCh, BAO, BSc, MD, MBA
John Crown is a professor and consultant medical oncologist at St. Vincent’s University Hospital, Dublin. He received his medical training at University College Dublin and the State University of New York.
In the late 1990s, John helped found two charity cancer research groups - the Irish Clinical Oncology Research Group (ICORG) (1996) and the Cancer Clinical Research Trust (CCRT) (1997). In June 2009, John Crown was awarded funding from Science Foundation Ireland, for the establishment of a further cancer research group, Molecular Therapeutics for Cancer Ireland (MTCI). The work of all these research groups directly benefits cancer patients in Ireland.
In April 2011, John was successfully elected as an Independent member to Seanad Eireann and is also a frequent contributor to the lay press, and professional meetings, on the subject of health policy.

Mr Gerry Fahy, First Families First and occupational psychologist
Gerry Fahey of First Families First is an occupational psychologist and psychotherapist. He is a graduate of TCD and the University of Illinois at Urbana Champaign He is also a chemical engineer with an MBA. Together with John Waters and Kathy Sinnott he established First Families First, a campaigning group who are calling for a No vote in the upcoming marriage referendum, in order to defend the rights of existing families.

Ms Annie Hoey, Vice-President for Equality and Citizenship, Union of Students in Ireland
Annie Hoey currently works in the field of human rights advocacy within the student movement. She specialises in campaigning for LGBT*Q rights, especially in the area of gender recognition and marriage equality. She is currently leading the student movement in a YES vote in the upcoming marriage equality referendum.

Annie’s current role as the Union of Students in Ireland (USI) VP Equality and Citizenship involves representing and lobbying on behalf of students who are marginalised or undermined by society. She advocates for equity of access to higher education, and fervently believe that age, sex, social status, ethnicity or socio-economic background should not be a barrier to education.

Annie is a graduate from University College Cork, where she received a number of awards and accolades for her contribution to student life there. Her involvement with student life included co-founding UCC's first ever feminist society, FemSoc, and running the highly successful UCC LGBT Society, which was shortlisted and won a number of awards.

Annie proudly stands for a YES vote in the upcoming marriage equality referendum.

Mr David Martin,a Trinity postgraduate student studying for a Master in Theology
David is a graduate of Trinity receiving a BA Mod in Trinity 2001. He went on to study and work in London and New York before returning to Dublin to pursue ordination in the Church of Ireland in 2004.  He is currently completing a Master in Theology in Trinity and hopes to be placed as a curate in Ireland later this year.  He is married to Honor and they have young four children.

Dr Kris McDaniel-Miccio
Dr Kris McDaniel-Miccio is a professor of law, an attorney and also an ordained Rabbi. Born and raised in New York City she is a recent transplant to Denver Colorado where she is a tenured professor of law at the Sturm College of Law, University of Denver. This year she is visiting at Trinity, as visiting professor in law and as a Long Room Hub Fellow. She holds a Doctorate from Columbia Law School, a law degree from Antioch School of Law and a baccalaureate degree from Marymount College of Fordham University. She is the recipient of a Fulbright, Marie Curie, Revson, and Hughes-Ruud Research Fellowship as well as the NOW Attorney of the Year, the UCD Law Society Honorary Life Membership Award and Social Justice Awards from the California Congressional Delegation, the New York State Office of Court Administration, the Brooklyn District Attorney's Office, the Association of the Bar of the City of New York, the City University of New York Law School...to name a few...all given in recognition of her work in defence of abused women and children. Dr. McDaniel-Miccio has written, published and lectured extensively on conceptions of morality, law and gender equality in both the States and Ireland. And she has been political and legal commentator in both print and electronic media in Ireland and the U.S. Kris recently married the love of her life in a beautiful Jewish wedding ceremony in New York.

Senator Jim Walsh
Jim Walsh is a native of New Ross, County Wexford. Walsh attended New Ross Christian Brothers School. Outside of his Seanad duties, he works as a businessman and company director. He was a member of the Chartered Institute of Transport, a Senator of Junior Chamber International and is a former president of the Irish Road Haulage' Association. He was elected in 1974 to New Ross Town Council and Wexford County Council in 1979.

Senator Walsh is currently the Seanad spokesman on Foreign Affairs and Trade, a member of the Foreign Affairs and Trade Committee, a Board Member of Parliamentarians for Global Action, a member of the OSCE Parliamentary Assembly, a member of the British-Irish Parliamentary Assembly and a participant in the International Catholic Legislators' Network.

Useful links:

Go to the Referendum Commission website http://refcom2015.ie/
View the Bill here
Check the Register of Electors

Further information may be obtained from Secretary@tcd.ie


Last updated 14 May 2015 Civic Engagement (Email).