Musings on the Complications of Legislating on Same-Sex Marriage

So here we are, a little after marriage between people of the same gender was voted for in Ireland; the big ‘YES’ win. Minister Varadkar promised a fast and efficient new Marriage Bill 2015 that will implement the nation’s wish into the law of the State. That is all lovely news indeed, and highly anticipated.

First of all, I would expect  the Act to make provision for divorce. Secondly, it might  be a good idea to allow Civil Partners to enter a marriage without making the process undully hard (eg require them to dissolve the partnership prior to tying the knot). Thirdly, I would like to point out that at the moment two people of the same sex cannot consummate their marriage – as it stands, such a marriage is voidable. As Denham CJ put it in MD v Ireland (at 47), ‘The act of sexual intercourse itself is engaged in by a male and a female’. In MM v PM, McMahon J purported that penile penetration alone is sufficient to consummate a marriage; that is virtually impossible between two women. My question is, will same-sex spouses be considered asexual? Has anybody thought of the broader legislative changes needed post referendum? I am worried we will end up with another rushed, incomplete piece of legislation.

A second area of law where the referendum has effect is Sexual Assault, including statutory rape. Until now a woman could not rape another woman because there was no penis involved. Should a sexual act between females be ackgnowledged as such, it will – and should – have ramifications on cases where such an act was not consensual; it is not merely an assault. Female rape is very much existent, very much a “thing”.

I would be very interested to know what people think, and if the legislator has taken the above into consideration.

I guess it remains to be seen?

From McNulty to Douglas: Constitutionality, Due Course & the Living Thing

A number of attempts are made each year by individuals to have legislative provisions declared repugnant to the Constitution by the Superior Courts. Declaring a provision unconstitutional carries considerable responsibility, as a result of, inter alia, the lacuna such a declaration leaves behind – needless to mention the agony of the draftsman and the fruit that it produces.

When the Supreme Court in CC v Ireland announced in May 2006 that s.1(1) of the Criminal Law (Amendment) Act, 1935 was of strict liability and, therefore, inconsistent with the Constitution, planet Earth took a couple of extra spins. But when, seven years later, Hogan J announced that s.18 of the same Act is ‘manifestly unconstitutional’, nobody moved a finger. Either everyone was too tired to react, too focused on their upcoming holidays, or we have lost interest in matters of constitutionality altogether.