Tag Archives: constitution

Bishops to Queens: Gay Marriage in Ireland

Bishops restate gay marriage opposition
Charlie Taylor

Ireland’s Catholic bishops have restated their opposition to gay marriage today, claiming that “sexual differentiation is intrinsic to our understanding of the sacrament of marriage”.

In a statement, the bishops said they had addressed the issue of the Christian theology of marriage at a meeting last week.

“In view of the current debate in our society about the nature of marriage, sometimes promoted by individuals or institutions who claim support from Christian ideals, the bishops reiterated that marriage presupposes the mutuality and complementarity of the sexes,” the statement said.

The bishops said that Christian tradition holds that sexual differentiation is intrinsic to our understanding of the sacrament of marriage and said that it had a meaning that “is not reducible to individuals’ intentions and society’s laws.”

“Marriage is not perceived as just any kind of relationship, but as a quite specific kind of relationship, with certain core characteristics,” the statement added.

The bishops said that marriage involves more than the commitment of two people to each other.

“It is oriented towards the sharing of their lives and the support they will give each other, and also towards the creation of new human beings as the fruit of their love. It is for the sake of these two objectives that the loving marital relationship between a woman and a man needs to be one that is faithful, exclusive and lasting,” the bishops’ statement added.

The statement comes during the 10-day Gay Pride festival, which has the theme Always the Bridesmaid and Never the Bride and is aiming to highlight the lack of partnership rights for the Lesbian Gay Bisexual and Transgender community.

A new Bill is being finalised under which same-sex partners will be able to avail of marriage-like benefits in a range of areas such as property, social welfare, succession, maintenance, pensions and tax.

However, it will not provide any right for same-sex couples to be considered as joint adoptive parents.

Although the new civil partnership legislation has been broadly welcomed, some equality groups claim the only way to achieve equality is to allow gay and lesbian couples to marry and have all the rights and benefits received automatically by married heterosexual couples.

http://www.ireland.com/newspaper/breaking/2008/0616/breaking62.htm

 

In California today same sex marriages have been taking place after a Supreme Court ruling permitting them to wed. It is of course very controversial and there is going to be a referendum to see if the voters in California want to allow it to continue. In Ireland there have been discussions about a civil partnership bill similar to what they have in the UK. Let’s face it civil partnership really isn’t the same as marriage if it were why not just let gay people marry?

One reason why civil partnerships are different is because a civil partnership cannot give the same level of protection to the partners as those who are married enjoy. Married people in Ireland have rights under Art 41 of the Irish Constitution. However, it has been held by the Irish Courts (although there is an appeal to the Supreme Court at the moment) that a marriage is between a man and a woman therefore same-sex marriage is not possible under the Irish Constitution. This means that if the State allowed civil partnerships they wouldn’t have the rights under the Constitution because the State cannot change the Constitution without a referendum. The State could just mirror the rights in the Constitution and give them a statutory footing but, these really is just diluted rights that haven’t got much force.

In order to get same sex marriage the Supreme Court needs to interpret the Constituition to allow same sex marriage or we need to amend the Constitution. And with comments like above from the bishops I fear that we won’t have that for some time. 


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Lisbon: Are the Irish People too Stupid to Vote?


Europe is reeling at Ireland for not being able to ratify the Treaty of Lisbon; the Irish People said in a referendum that they didn’t want to approve the Bill that would amend the Constitution to allow the Irish Parliament to ratify the Treaty. No other countries in Europe had to have a referendum to ratify so why did Ireland? This is a very interesting point, Ireland’s Constitution makes it’s Parliament the sole lawmaker for the State–it and it alone can make law. This means that when EU law claims to be enforceable in Irish Courts and when EU law claims to be higher than Irish law even the Irish Constitution there is a conflict. In order to address this a provision was added to the Constitution by the 3rd Amendment which makes Article 29.4.10° state:


No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.

This means that EU law takes precedence over the provisions of Irish Law. The Irish Courts siad after this Amendment was passed that there was an expectation that the Union would develop and change. However, where the change was serious and ground-breaking then the changes effected by that Treaty would not be afforded that exemptions from Constitutional compliance in Article 29.4.10° (above) and that in order for them to be given that exemption they could have to be approved by a referendum to amend the Constitution to allow that State to ratify the Treaty. However, the Courts did say only serious ground-breaking changes needed to be put to a referendum there is an argument to say that the Irish government are being too cautious in what they regard as serious and ground-breaking. The Treaty of Maastricht was clearly ground-breaking and thus needed a referendum but, Amsterdam and Nice were less so and may not have needed one. I don’t know how the Courts would regard the Lisbon Treaty in terms of its effect on EU law–would it be ground-breaking enough to require a referendum?

So you see why the Irish people got to vote on Lisbon whereas all the other member States were denied this vote. I think this is a democratic deficit in the way the EU works; surly all major amending treaties should as part of there terms require approval by the People; I am not sure what form this should take–nation by nation, pan-Europe or some other form I don’t know yet but, it is important for democracy that people are consulted more directly.

This takes us to the argument that People aren’t smart enough to vote on Treaties like Lisbon–they are huge complicated documents that work on such varied topics that they can’t be fully understood by regular people. Looking at the Treaty of Lisbon it is a complicated document that needs a lot of work to understand the meaning of some parts of it because it is now an amending treaty so it has to be read with all the other treaties of Europe in order to be able to decide what it means. This is not an argument for not allowing the People to vote on it though it just means that for those of us that don’t understand the treaty for whatever reason it must be explained to us and debate must be allowed for people to form a view on it.

Europe is for the People of Europe; it is their Union and they deserve to be heard and when politicians say that we aren’t clever enough to decide for ourselves how we want to see our Union develop it is an indictment on their fitness to lead us.

As a matter of clarification I voted ‘Yes’ to the treaty but, I respect the vote of the Irish People as a democratic decision that was denied to the rest of Europe.



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Will Fuck For Coke

I got a new t-shirt a while ago it’s a red t-shirt with black writing that says “Will Fuck for Coke”. I was wondering if this slogan would be unlawful to display in public. I was thinking of the US case of Cohen v. California 403 U.S. 15 (1971) where the Supreme Court overturned the conviction of a boy convicted for wearing a t-shirt that said “Fuck the Draft” and also of people arrested for wearing a cloths that said “Bollocks to Blair”[1] I looked into the legislation that might criminalise displaying my t-shirt. The first thing I found was s7 of Criminal Justice (Public Order) Act, 1994 provides:-“(1) It shall be an offence for any person in a public place to distribute or display any writing, sign or visible representation which is threatening, abusive, insulting or obscene with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned.”Sub-s 2 provides for a fine of £500 and/or 3 months in prison! This seemed a little crazy to me. Could I get fined and/or jailed for wearing this t-shirt?

So in order to be prosecuted under this provision it need to be shown a) that I displayed an obscene image and b) that I displayed it with intent or was reckless as to whether it would cause a breach of the peace.

Well you can take it that I did not intend to cause a breach of the peace and that leaves recklessness; it is outside the scope of this post for me to explain the law behind recklessness but suffice to say it could be argued that I was reckless. However, the Court, in a case taken against anti-abortion campaigners for displaying pictures of foetuses, dismissed the defendant because they did not intend to cause a breach of the peace[2] so does this mean that the recklessness element is not used in practice?

So this leaves the question is my t-shirt obscene? This question is material to all the other laws that I might be charged under like s3 Indecent Advertisements Act, 1889. There is not Constitutional or statutory definition of ‘obscene’ however, in the 1868 case of R v. Hicklin[3] the Court gave a definition of obscene. It said that obscene meant that if the stuff that was said to be obscene was to deprave those whose minds are open to such immoral influences and into whose hands the publication might fall. As you can see this definition doesn’t really give much in way of help as to deciding if my t-shirt is obscene.

It seems even that under the European Convention of Human Rights Art10 that a large what is called ‘margin of appection’ is given to states to decide what is moral.[4]

So I guess that it is very unlikely that I could be successfully prosecuted but still perhaps possible I think that is a very sad thing in a democratic society.

1 http://news.bbc.co.uk/1/hi/england/london/4955488.stm
2 Irish Times, 13th December 1995
3 R. V. Hicklin (1868) 3 QB 360
4 (1991) 13 EHRR 212

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