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?

Cyberbullying & Harassment: A Recipe for Disaster

As I have argued before, cyberbullying is not a novelty. The problem with our times is that, 20 years later, the World Wide Web  has expanded to all four corners of the Earth with information (including audiovisual content) travelling at the speed of lightning. Anyone, any place, at any point can upload anything with a single click.

The statutory protection against (cyber)bullying in Ireland at the moment is s10 of the Non-Fatal Offences Against the Person Act 1997 re harassment, which defines it as:

Too Old to Rock’n’Roll, too Young to Make a Will?

NOTE: The following article is not intended to constitute legal advice, nor am I in a position to give same. It is nothing but a summary of my observations and is merely an expression of my opinion, in my personal capacity. Specific reference to statutes and case law has been purposely omitted. Should you need help with drafting your will and a layout of your options, please seek professional legal advice.

When we turn 18, the last thing on our minds is where our – usually non-existent – property would go when we leave this vain world. As we grow up, responsibilities multiply and so do we, but that 18 year-old somehow still manages to speak the words in our head: ‘I’ll make a will when I’m old, because that’s what old people do’.

That might have been the case twenty, maybe even ten years ago, but technology has progressed to a point that I am afraid this is not where things stand anymore.

Come together, Right now… Over me

I did not want to write about this matter yesterday because I was emotionally charged. Let me tell you that a day has not made a difference.

Yesterday an ex parte application was brought before Hedigan J, aiming at inducing a woman into a cesarean section (Waterford Regional Hospitan v AD).

The thing that distinguishes a slave to a free man is the right of self-determination; the ability for one to make their own choices, for themselves. A slave can be a political slave, a social slave, a sexual slave… no matter what kind of a slave they are, they do not possess the right to exercise their free will – they do not own their body.

The Referendum of the angry

The Referendum on Childrens’ Rights will be up for vote in exactly two weeks, millions of euros have been put aside for its promotional campaign but despite this, it is still getting an overall negative reaction.

One would think the Irish don’t want our children protected by the supreme law of the State but we would rather leave it up to the courts that have done a wonderful job so far sending them to industrial schools (and we all know how they were run) or placing them with seldom loving foster families; we do not care about our children.

This cannot be further from the truth. For this campaign to have caused so much anger and for persons in authority to look the other way is wrong. As previously mentioned the change to Article 42 is to set the fundamental rights of the children in stone. Although it does hand out some rights (e.g. the right to be heard in court), it does absolutely nothing to solidify the rights of the child within the family.

3 Questions plus 1: The Family

*Today was the last day of exams and I am left with a sour aftertaste. Had I ordered the exam to go, it would have included the questions on the sheet I got this morning. What I came to realise though is that, no matter how much you know or how well prepared you are, you cannot beat that clock. I only got to write 1/5 of what I intended to and not because I blanked (like I did with Torts, may that moment never come again), but because the time was only enough to write about the basics! I didn’t write about polygamous families in art 41 nor did I write about Damache in retrospectivity – which is really current. I didn’t write about McKeogh in privacy. I might need a hand transplant, one that writes faster..

In all fairness, this is what I meant to write, even the mere outline would have been nice – one with cohesive arguments that actually made sense!

 

 

 

In Art 41, the Constitution speaks of a “natural primary and fundamental group of society”, named the “Family”. This group is described as “the necessary basis of social order”, “indispensable to the welfare of the Nation and the State” and the “primary and natural educator of the child” (Art42). The description  per se appears rather heavy-weight, this “family”seems to be the glue that holds the society together, without it society would fall apart. It is no wonder, therefore, that the drafters of the Constitution made sure that its safeguarding would be as broad and as flexible as possible in a hopeful effort to give this group sufficient protection that would last through time, against all external forces, including the judiciary (Constitution Review group 1996). The Constitution guarantees to protect the “ineliable and imprescriptible rights” of the family that are “antecedent and superior to all postive law”.

‘By themselves’ though, ‘rights consist only of words. They cannot be eaten and they cannot afford a shield against hatred and ignorance’ (Mr Justice Edwin Cameron, Leslie Scarman Lectures 2012, Middle Temple Hall – London). So the question to the matter is: have the powers of the State managed to provide the “family” with sufficient protection based on the text of the Constitution? Was the drafter’s linguistic choice a wise one?

Drop it like it’s Canadian

Taking a short break from studying (Murphy and DeBurca are doing my head in, Lord have mercy) to comment on a date on the Legal Diary, brought to our attention by Paul MacMahon and his lovely Ex Tempore blog – nice getting back in touch with reality.

The facts:  Same as Ireland, Canadian law for the longest time defined marriage as the “union  between a man and a woman”. In 2003 the Ontario Court of Appeal held that this definition violated the Canadian Charter of Rights and Freedoms and consequently, in 2005, the Civil Marriage Act was enacted giving same-sex couples the long-awaited privilege of tying the knot.

The problem: Shortly after balance seemed to be established and Canada was finally enjoying a first – giving full rights to people while the US was squirming and pushing to follow, trouble appeared in heaven; they never took into account that someone might not like the knot they tied! In 2005, the Ontario Court of Appeal declares the Divorce Act unconstitutional affirming its application to any-sex couples and gets out of the accident with nothing but a scratch.

The bad politics?: We travel forward to January 2012, with a Government ready to be swallowed by the fury of the press and thousands of families in limbo; it seems like they weren’t just marrying Canadian couples, they got so excited they married everyone! Great for tourism no doubt and certainly very profitable, following the example of Las Vegas, Ontario invested in marital ceremonies. What they didn’t take into account though was that outside this shiny bubble, other countries did not acknowledge the same legal right to their residents, much less their citizens. So how were these tourists going to apply now for a Canadian divorce?

On the 19th June 2012 the Zappone/Gilligan case will be initiated, for the second time, at the Supreme Court. For the life of me (just like the first time) I have no idea what their appeal will be, what kind of appeal could actually be convincing enough as to be upheld. Mrs Justice Macken suggested on the 21st October 2011 that should they wish to challenge the unconstitutionality of any type of Irish law they need to take the case back to the High Court and plea accordingly. Best bet they will try to follow the Canadian formula.

Here is the link to the proposed Canadian Civil Marriage of Non-Residents Act (Bill). It gives the KAL case some legal ground – although still not in force on one hand. On the other, wouldn’t the Court’s involvement in this particular situation be considered as enabling the Canadian fiasco?

Don’t mind the Irish Law, you may completely disregard it and go follow some other country’s Law and when you come home, we will give you a  nice pat on the back and say “well done!”

The Law isn’t always fair but it’s the one thing that holds this community together. We must be very careful not to send out the wrong message, very careful not to shake its foundation in the name of personal needs; we don’t live alone, we are all interconnected. As said in isiXhosa and one of Mandela’s favourites: “‘muntu ‘ngmuntu ngabanye abantu” (we live with and through others). In this particular case the work of the judges is made extremely difficult and the balance very thin due to the course of events.

Can’t wait to see if our Human Rights judge will attend this formation, he’s the voice of all free spirits now.