The Thirty-fourth Amendment of the Constitution (Marriage Equality) Act 2015 (previously bill no. 5 of 2015) amended the Constitution of Ireland to permit marriage to be contracted by two persons without distinction as to their sex. Prior to the enactment, the Constitution was assumed to contain an implicit prohibition on same-sex marriage in Ireland. It was approved at a referendum on 22 May 2015 by 62% of voters on a turnout of 61%. This was the first time that a state legalised same-sex marriage through a popular vote. Two legal challenges regarding the conduct of the referendum were dismissed on 30 July by the Court of Appeal, and the bill was signed into law by the President of Ireland on 29 August. An amendment to the Marriage Act 2015 provided for marriages permitted by the new constitutional status. The act came into force on 16 November 2015; the first same-sex marriage ceremony was held on 17 November 2015.
Changes to the text
The amendment inserted a new section 4 to Article 41 of the Constitution. The English text reads:
4. Marriage may be contracted in accordance with law by two persons without distinction as to their sex.
The Irish text reads:
4. Féadfaidh beirt, gan beann ar a ngnéas, conradh pósta a dhéanamh de réir dlí.
The text in Irish and English is intended to have the same meaning; in the event of a conflict, the Irish version takes precedence.
Original Irish wording
The Irish text of the amendment as introduced was:
4. Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.
Journalist Bruce Arnold argued against the bill in two articles in The Irish Times, one of which focused on alleged issues with the Irish text. Arnold argued that the Irish text describes only same-sex couples, thus rendering opposite-sex marriage illegal. Government sources pointed out the words impugned by Arnold (beirt and cibé acu is fir nó mná) are already used with similar intent elsewhere in the constitution. Counterpoints from legal academics were that Arnold's strict constructionist interpretation would be trumped by the doctrine of absurdity, and that failure to mention opposite-sex marriage would not make it illegal. Some argued that the Irish text should nevertheless be changed to remove all doubts. Enda Kenny announced on 10 March 2015 that such a change would be made. Frances Fitzgerald moved the amendment in the Dáil the following day.
Background
Katherine Zappone and Ann Louise Gilligan lost a case in the High Court in 2006 for the recognition by Ireland of their Canadian same-sex marriage. The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 instituted civil partnership in Irish law. After the 2011 general election, the Fine Gael and Labour parties formed a coalition government, whose programme included the establishment of a Constitutional Convention to examine potential changes on specified issues, including "Provision for the legalisation of same-sex marriage". The Convention considered the issue in May 2013 and voted to recommend that the state should be required, rather than merely permitted, to allow for same-sex marriage. Its report was formally submitted in July and the government formally responded in December, when Taoiseach Enda Kenny said a referendum would be held "no later than mid-2015". All amendments to the Irish constitution must be approved by the people in a referendum before becoming law.
Some legal academics claimed that extending marriage to same-sex couples did not require a constitutional amendment and could have been accomplished by an ordinary Act of the Oireachtas. Then-minister Shatter disagreed in November 2013, stating that there was "ample case law" to the effect that "marriage is understood as being between one man and one woman".
In January 2015, the wording of the proposed amendment was agreed at a special cabinet meeting and published in the press, and the bill was formally introduced in the Dáil by the Minister for Justice and Equality, Frances Fitzgerald.
A separate Children and Family Relationships Act 2015 was passed in April 2015. This included adoption rights for same-sex couples – prior to the passing of the Act, single gay or lesbian people, or one of the partners in a same-sex couple could adopt, but joint adoption by both partners was not possible. The general scheme of this bill was published for consultation in January 2014, and in 2015 it was passed by the Dáil on 12 March and the Seanad on 30 March, and signed into law on 6 April. As of May 2018 the legislation has only partially been commenced.
Referendum
Two referendums were held on 22 May 2015, on the marriage bill and another constitutional amendment, to reduce the age of candidacy for the presidency. Referendums need a simple majority of the votes cast to pass. A Dáil by-election in Carlow–Kilkenny was held on the same day.
According to the Referendum Commission, if the referendum were to be passed:
- Two people of the opposite sex or of the same sex will be able to marry each other.
- The other detailed rules about who may marry will continue to be set out in legislation.
- The Constitutional status of marriage will remain unchanged.
- A marriage between two people of the same sex will have the same status under the Constitution as a marriage between a man and a woman.
- Married couples of the opposite sex or of the same sex will be recognised as a family and be entitled to the Constitutional protection for families.
Debate
Oireachtas debate
The Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 was debated in the Dáil on 10 and 11 March 2015. Several deputies from different parties spoke in favour. The only speaker to oppose it was independent TD Mattie McGrath; it was passed without a division (i.e., by voice vote). It was then debated in the Seanad on 25 and 27 March. Votes were held on a number of proposed amendments, all of which were defeated, and the Bill was finally passed by 29 votes to three. Among those speaking in favour was Katherine Zappone, who was a Senator at the time. Those who voted against were Senators Rónán Mullen, Jim Walsh and Feargal Quinn; the opposition amendments were also supported by Senator Fidelma Healy Eames.
Organisations
Political parties
All four main parties in the Dáil supported the bill: the governing Fine Gael and Labour, and the opposition Fianna Fáil and Sinn Féin. Members of the Green Party, Anti-Austerity Alliance, People Before Profit Alliance, Workers' Party and independents are also on record in support of the amendment. "Yes Equality" was an umbrella campaign by Gay and Lesbian Equality Network (GLEN), the Irish Council for Civil Liberties and Marriage Equality.
Religious bodies
Religious bodies in Ireland officially adopted a range of stances to the referendum, though the official church positions were either neutral or in opposition.
The Catholic Church did not take an official position on the referendum and the Pope did not make any direct comments on his stance. However, there were a number of bishops and priests that shared differing views publicly.
In the lead up to the referendum, Archbishop Diarmuid Martin confirmed that while he planned to vote No, he was not affiliated with any No campaign and had "never told people how to vote" and encouraged "everyone to vote and to reflect carefully". Shortly before the referendum, Eamon Martin urged Catholics to reflect on their decision but avoided telling members how to vote.
In December 2014 the Irish Catholic Bishops' Conference shared their opposition on same-sex marriage, and distributed a booklet to all parishes. The Bishops' document stated that marriage "provides for the continuation of the human race and the development of human society". It posited that same sex marriage would "redefine the nature of marriage" and "undermine it as the fundamental building block of our society." When the document was launched, the Bishop of Clogher Liam MacDaid shared that the intention was to outline the "Christian understanding of marriage.". However the interest of a Church in a No vote was called into question by some, with the Irish Catholic noting only 10% of Irish Catholics were expected to receive the leaflet.
Opposition to same sex marriage was not a view universally held within the Irish Catholic clergy and The Irish Times reporting that there was "significant disquiet" from parish clergy about the impact of the bishops stance on gay people and on the church.
From January onwards, a number of Catholic priests started to publicly express disappointment with the approach taken by the bishops in opposing same sex civil marriage and/or support of a Yes vote. In January Fr. Martin Dolan, Roman Catholic priest at the Church of St Nicholas of Myra came out to his congregation and called on their support in voting Yes in the referendum. Augustinian Catholic priest Fr. Iggy O' Donovan shortly followed in openly declaring his intention to vote for same-sex marriage. Writing in a national newspaper he shared that while churches can have different views and variations of those views, in referendums "we legislate for ALL our fellow citizens". He encouraged others to "remember the difference between civil and religious law." Later speaking to the Irish Independent, he expressed that while he believed in "Catholic teaching on marriage", following years of pastoral work with gay Catholics, he felt that other peoples different views should be respected, and he should not be imposing his own on them. He also said we should be sensitive to get things right, referencing the scandal surrounding Cardinal Keith O' Brien who had been one of the loud proponents against homosexuality and same sex marriage, but later faced allegations of sexual misconduct from fellow priests and was reported to have been in a long-term same-sex relationship.
In March 2015 the Association of Catholic Priests, representing more than 1000 Irish priests, declared it would not take a position in the referendum. This decision was taken following member consultation with a released statement saying "The ACP asserts the particular responsibility that devolves on priests to measure their words carefully, and not to direct their parishioners to vote Yes or No."
In May the Catholic Bishops Conference shared a message entitled 'Care for the Covenant of Marriage’ where Archbishop Eamon Martin reiterating the bishops position on the referendum. In this message he said "The Irish bishops have already said that we cannot support an amendment to the Constitution which redefines marriage and effectively places the union of two men, or two women, on a par with the marriage relationship between a husband and wife which is open to the procreation of children." Eamon Martin did not explicitly call for a No vote but expressed concerns about the consequence of a Yes vote.
As the referendum drew closer, more priests shared their support for a Yes vote including Fr. Gerald Moloney who wrote of his intention in the Irish Times. He expressed that while he viewed marriage as a sacrament he felt "citizens of the State" could decide "how they define marriage and who can enter it". Gweedore priest Fr. Brian Ó Fearraigh announced his support for a Yes vote, making the decision as he felt the referendum gave "statutory recognition and protection to the relationships of people regardless of their sex". As more priests announced their intentions to vote Yes, the Washington Post reported on the growing number of Irish priests coming out against the stance of the church leadership in Ireland.
The Church of Ireland announced in February 2015 that it would not be taking a stance on the referendum, instead encouraging members to vote according to their conscience. A spokesperson for the church said that while marriage between one man and one woman was the "basis on which the Church's liturgy for marriage is used" the Church "also recognises that a state has a duty and responsibility to legislate for its citizens". He encouraged members of the Church to vote "when the State consults on matters, such as the civil definition of marriage."