A reader from Ireland writes us this:
Dear Sir / Madam,
I wish to comment on and perhaps clarify a few matters pertaining to your generally helpful ‘Marriage Map’ which was explained in your posting of 28th November 2014. It occurs to me that there may be countries that could attract a number of different colours. This is so since some States continue to define marriage as the union of a man and a women (green or dark green) while simultaneously creating legal structures for the recognition of unions between persons of the same sex (yellow). Hungary would appear to be an example in so far as it constitutionally safeguards the natural law definition of marriage (dark green) while, I understand, also facilitating registered partnerships for persons of the same sex.
In respect of Ireland, both North and South, permit me to make the following observations:
1. Your map currently features Northern Ireland in red as with the rest of the United Kingdom. It is of course true that England and Wales together with Scotland have recently redefined marriage in a way that merits the red label. However, since marriage legislation is a devolved matter the Northern Irish legislature (the Northern Ireland Assembly) has thus far resisted pressure to redefine marriage despite a number of motions proposing just that. Interestingly it is Protestant law makers who are most resistant to altering marriage in law while Catholic legislators are for the most part proponents of change. Owing to the somewhat complex voting rules in the Assembly it is likely that any redefinition would require a majority among both ‘communities’ (i.e. Nationalist and Unionist blocs). Attaining such a coalition seems unlikely in the immediate future. In the meantime lobby groups in favour of redefinition are threatening legal action to align Northern Ireland’s position with that of Great Britain.
On the other hand, Northern Ireland is effected by the UK wide Civil Partnership Act 2004 which instituted civil partnerships for persons of the same sex. These legal unions approximate in almost every conceivable way to marriage. Since this was a Westminster statute it became effective in Northern Ireland despite expressed opposition to the legislation in a consultation. Joint adoption rights for same sex couples were conferred by later legislation in Great Britain but not Northern Ireland. The latter however has now been forced to concede joint adoption rights to same sex persons following local Court rulings on purported human rights grounds.
In summary, the retaining of the common law definition of marriage suggests that Northern Ireland could be coloured green. On the other hand, the existence of civil partnerships may justify the yellow label. Red, however, is most certainly not appropriate.
2. Your map shows the Republic of Ireland in yellow. This is likely justified by the passage of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 which inter alia provides a legal framework for unions between persons of the same sex. While not comparable in every way to the rights and obligations of marriage the said partnership is in substance very similar. There is not as yet any provision for joint adoption by same-sex couples but the Government has pledged to accommodate this in the forthcoming months.
Part of the reason why the legislation for civil partnerships could not precisely mirror marriage is because as currently drafted the Irish Constitution provides robust support for the institution of marriage. The Constitution addresses marriage under Article 41 which is titled ‘The Family’. Article 41.3.1 provides as follows:
“The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”
Earlier in the Article the Family is described “…as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.” The drafters of the Constitution – approved by the Irish people in 1937 – doubtless considered it superfluous to state that marriage is between a man and a woman. That understanding has however been subsequently confirmed by the Courts. It would follow that Ireland may merit the colour dark green in so far as there currently exists special constitutional protection for the natural law institution of marriage.
This constitutional safeguard has prevented otherwise eager legislators from redefining marriage by way of statute. It has also provoked a now successful campaign for a referendum to be held proposing a constitutional amendment that will facilitate ‘marriage’ between persons of the same sex. The Irish people will be asked to vote in May 2015 on a yet unspecified date. The Government has unveiled the proposed wording to be inserted in the Constitution. It reads as follows:
“Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”
This formulation is proposed to constitute a new Article 41.4 while somewhat incongruously leaving the remainder of Article 41 intact. Initial legal opinion (see here) suggests that the Government’s amendment would oblige the State to facilitate ‘marriage’ between persons of the same sex. If approved this provision would arguably render Ireland a Dark Red State on your analysis since it would be a country with a clause in its fundamental law guaranteeing the recognition of ‘marriage’ between persons of the same sex. It would constitute a veritable legal transformation for a nation once lauded as one of the most faithfully Catholic in the world.
In the first place, we wish to thank the author of this letter (who has asked us not to disclose his name) for this very useful information and analysis.
Second, we note that his letter exposes some of the difficulties we face in making this Marriage Map: reality is complex, often more complex than can be expressed by a simple shade of colours.
There are indeed countries where on the one hand the Constitution – more or less explicitly – defines marriage as a union between a man and a woman, while on the other hand parliaments have adopted laws that legally recognize, and confer a legal status on, same-sex relationships. Such appears to be the case of Hungary and the Republic of Ireland, the two examples quoted by our reader. Another example is Croatia, where, following a plebiscite that was initiated against the will of the left-wing Government, the Constitution was amended to define marriage as the union between a man and a woman, but where the Government (sore losers as they were) immediately reacted by adopting a law creating same-sex “civil partnerships” as a new institution. In doing so, the Covernment showed a horrible amount of contempt for the opinions expressed by the people it is supposed to govern. We can only hope that the next Government will correct that error.
For the reasons set out elsewhere on this website, we at AGENDA EUROPE believe that laws providing for same-sex “civil partnerships”, though not quite as bad as same-sex “marriage”, are a very bad thing – and we therefore encourage our readers to oppose them or, where such laws have been adopted, to fight for their abolition. Sodomy is a sexual perversion, not a public “good” deserving of status and legal protection. That said, we do not any problem in laws that permit citizens to jointly buy and sell property, or to provide other pragmatic solutions for citizens, so long as the absurd and obscene implication of sodomy being a “good” is carefully avoided.
We therefore do not believe that countries providing for same-sex “civil partnerships” should be indicated in green or dark green, given that such laws have a dangerous potential of undermining the correct understanding of marriage and family. So ultimately it may be wiser to paint Hungary and Croatia in yellow. On the other hand, the constitutional amendments defining marriage as a union between a man and a woman have been freshly introduced in both countries despite considerable pressure from outside, and we feel that this should be rewarded.
We will give it a thought. Maybe we find a new solution – what about yellow dots on a dark green background?
Concerning Northern Ireland, we agree with our reader that, if the situation is as he says, the most appropriate colour would be yellow, not red. So here goes:
And of course, we wish all the best to Ireland for the upcoming referendum. After the referendum we will re-assess the situation.