civil partnership bill | A Clatter of the Law

Posts Tagged 'civil partnership bill'

Blog carnival on civil partnership & cohabitation law

Don’t miss the Human Rights in Ireland blog carnival on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Particularly interesting is Eoin Daly‘s post on the so-called “conscience clause”, which I previously argued should properly be called a “permitted discrimination clause” (for brevity, let’s refer to it as the discrimination clause).

In a different era, conscientious objectors were given alternative means to perform their civil duties.

Daly argues that the dismissal of the complaints from individuals like Ronan Mullen was summary in nature and scant on substantive arguments. He says that it is arguable that the Constitution offers more generous protection to employees objecting to the performance of duties on religious grounds than human rights law does.

He makes the following point; crucial to the issue but which leaves quite a conundrum for the law and for society itself.

Like most, I find the sentiment behind the claim [to an exemption on religious grounds] odious and without any moral value. But a part of the point of religious freedom is that we do not adjudicate on the content of religious belief itself, only on the manner of its expression.

How can this be reconciled? Daly suggests there is a more coherent argument against a discrimination clause: one based on the extent to which one’s own right to religious freedom extends, rather than one which looks into the moral content of a belief.

The law cannot impose any burden or disability on the basis of our religious affiliation or beliefs, but this does not mean that the requirement to perform public duties contrary to religious beliefs represents a loss to religious liberty, where these requirements have no bearing on religion per se. We cannot extend the concept of religious freedom broadly that it seeks to remove all advantages that result from the performance of religious duty, or accede to claims to have the social and political world arranged so as to harmonise with the requirements of those religions best positions to achieve public status and recognition. We cannot force persons to sell alcohol, but their religious freedom could not compensate them for any lost opportunities they might suffer on this count.

I had made the point that, in so far as Senator Mullen et al were concerned, the discrimination clause argument was lost when the Equal Status Act 2000 was passed by the Oireachtas. However, the civil partnership debates have shown that the issue has not gone away and, in future debates, Daly’s reasoning is likely to provide a more solid (and less heated) basis on which arguments from objectors could be countered.

Cohabitant rights on the way

Published 2 July 2010 Domestic Legal Issues 1 Comment
Tags: civil partnership bill, cohabitants, irish law

The Civil Partnership Bill 2009, one of the most significant pieces of Irish law in the past few decades, has passed through the Dáil. Therefore, it is destined to become law but will first have to pass the Seanad and receive the Presidential signature. It will probably not take full effect until 2011, when the tax and social welfare laws have been amended in line with it and preparations are made to formalise civil partnerships.

I’ve written before about Part 15 of the Bill, which deals with cohabitants. This has received less attention, understandably, than the civil partnership elements of the law but Part 15 applies to all relationships, whether homosexual or heterosexual in nature. Amendments have been made to Part 15 so that cohabitants will have to live together for 5 years before their rights arise (2 years if dependent children are involved) rather than the original 3 year qualification period proposed in the first draft of the Bill.

Professor John Mee has made a detailed critique of the legislation, primarily pointing out drafting errors and ambiguities in the Bill. He also made general observations that Part 15 might do more harm than good. These points do not appear to have been addressed. Nor does the Minister appear to have amended the title to highlight the cohabitant elements, as was expected. Update: via Maman Poulet I learn that this has now happened and the legislation bears this tongue-twister of a name: the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009.

Incidentally, there have been some suggestions (mostly from the odd Fianna Fáil backbencher) that the legislation is a Green Party measure, though Fianna Fáil’s manifesto for the 2007 general election (which predated coalition talks with the Green Party) contained a commitment to introduce the legislation.

Freedom from the conscience of others

Published 6 February 2010 Social law 2 Comments
Tags: civil partnership bill, equality

Breda O’Brien again makes the argument today, in a somewhat convoluted fashion, that some citizens of the Republic of Ireland ought be permitted to discriminate against others.

In fact, she goes further and suggests that Irish society will not be genuinely tolerant or pluralist unless a self-selecting category of citizen is allowed discriminate against another, naturally arising category. Leaving aside the specific debate about whether or not civil partnerships should be recognised by the State, such a proposal is incompatible with existing equality law and, if accepted, requires a fundamental reshaping of that law.

The Equal Status Acts 2000 and 2004 prohibit discrimination on the grounds of sexual orientation (section 3(2)(d)). The Civil Partnership Bill 2009 provides for the registration of civil partnerships between same-sex couples. The Bill, if passed, will also amend the Equal Status Acts to provide that any reference to “marital status” be replaced with “civil status”. Accordingly, where it is currently unlawful to discriminate against someone on the basis of whether or not they are married, in future it will also be unlawful to discriminate against someone on the basis of whether or not they are or were party to a civil partnership.

Some are unhappy with this consequence and believe that, if a service provider or public servant is of the opinion that a family should consist only of heterosexuals, they should be permitted to refuse service to someone who wishes to have a civil partnership registered. They refer to this as a “freedom of conscience” or “freedom of religion” amendment, often shortened to the “conscience amendment”.

The more accurate term for such an amendment is a “permitted discrimination amendment”.

Opponents of the Civil Partnership Bill are, of course, entitled to make their views known and to lobby for amendments, but they should not misrepresent the nature of the amendment they seek. Neither should the media collaborate in such misrepresentation by repeating this misnomer.

To accept such an amendment would be to roll back the existing law on equality and not, as is suggested, to advance the case of religious equality. The battle currently being waged by Ms. O’Brien, the Iona Institute, Renew and the National Men’s Council of Ireland was lost when the Equal Status Act 2000 became law.

If one is prepared to accept the logic of the permitted discrimination amendment in the case of personal belief and homosexuality, there appears no reason why that logic should not be accepted in the case of the other eight grounds of discrimination, which are: