With the publication of the wording of a constitutional amendment on marriage equality last week, the battle lines are being well and truly drawn for May’s referendum. It is clear that the No campaign is being based entirely around issues relating to the parenting of children by same-sex couples. In response, the Yes campaign argues that this issue will not form part of the referendum, as it will have been addressed by the Children and Family Relationships Bill, due to be enacted in March.
The No Campaign shows no sign of being deflected from its main strategy by the pending enactment of a Bill that will allow for same-sex couples to adopt (as couples – individuals within same-sex couples can and do already adopt), or for a non-biological parent in a same-sex couple to be appointed as a guardian. As a fall-back position, prominent No campaigner Breda O’Brien, in her Irish Times column last Saturday, raised question marks over the constitutionality of the Bill. This in turn generated a debate on the Irish Times letters page. Is there any substance to the claim?
Ms. O’Brien did not provide any detail on how exactly the Bill would violate the current provisions of the Constitution, and in the absence of clarification, we can only speculate. The tenor of her article suggests that she sees the Bill as an attack on the institution of marriage and the marital family, which enjoy the protection of Article 41. In particular, Article 41.3 states: “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.” The Irish courts have dealt with numerous cases over the years where legislation has been alleged to constitute an attack on the institution of marriage, and have developed two tests for assessing whether laws fall foul of Article 41.3.
The first test is whether the law in question penalises the married state. If, by virtue of a piece of legislation, a married couple find themselves in a worse position that they would be in were they not married, the law is unconstitutional. Murphy v Attorney General  IR 241 is the classic case on point; income tax legislation was struck down on the basis that it required married couples to pay more tax than if they were merely cohabiting.
The penalty test would not seem applicable to the Child and Family Relationships Bill 2014. Put simply, no opposite-sex married couple will find themselves any worse off by virtue of the fact that same-sex couples will be entitled to have their relationships with children that they care for legally recognised, or that they will be eligible to apply to adopt as a couple rather than merely as individuals. The law will not impact on opposite-sex married couples in any way.
While the penalty test assesses the impact of the law on married couples, the other test – the inducement test – assesses the impact of the law on couples who are not yet married. If a law might have the effect of inducing couples not to marry where otherwise they might marry, then it could be considered an attack on the institution of marriage and therefore be unconstitutional under Article 41.3. Again, however, the fact that same-sex couples will be entitled to have their relationships with children that they care for legally recognised, or will be eligible to apply to adopt as a couple rather than merely as individuals, cannot reasonably be construed as an inducement to opposite-sex couples not to marry.
If anything in the Bill raises eyebrows, it might be the fact that it does not confine eligibility to apply to adopt to married couples or civil partners. Under Heads 78-82, cohabitants of at least three years’ standing will also be eligible to apply. In the context of same-sex couples, the fact that marriage would not be a pre-requisite to eligibility to apply cannot currently be seen as an inducement not to marry, since they cannot marry at present. However, what about in the aftermath of a Yes vote in the referendum? And what about opposite-sex couples – might their new-found eligibility to apply to adopt as a cohabiting couple be seen as an inducement not to marry?
In the case law on point, an inducement not to marry is seen as treating someone more favourably when unmarried than they would be if married (see, for example MhicMathúna v Ireland  1 IR 484 at 494-495). This description cannot be applied to the Children and Family Relationships Bill. The Bill does not propose to treat unmarried couples more favourably than married couples; it merely proposes to equalise their position, in that unmarried couples would now be eligible to apply to be assessed as potential adopters as a couple, in the same way that married couples can.
Mere equalisation is not sufficient to render a law unconstitutional by reference to Article 41. Certainly, Article 41.3 permits legislation which is more favourable to marital than to extra-marital families, and protect such discrimination from being struck down under the constitutional guarantee of equal treatment before the law contained in Article 40.1. For example, in O’B v S  IR 316, succession legislation which restricted intestate succession to marital children was upheld on this basis. And, as already outlined, Article 41.3 precludes legislation which treats marital families less favourably than extra-marital families
However, the case law does not establish that Article 41.3 requires all legislation to discriminate in favour of the marital family or precludes any legislation which treats marital and extra-marital families similarly; indeed, any such requirement would be impossibly overbroad and unworkable, and there are examples of statutes that treat the two identically. For example, Part 6 of the Social Welfare Consolidation Act 2005, in providing for a family income supplement for low income families, makes identical provision for cohabiting but unmarried parents as for married parents.
How will any of this impact on the referendum? The first point to note is that the enactment of the Bill is not a legal pre-requisite to the referendum. Were the Bill not to be enacted, the referendum could proceed regardless. The link is a political one rather than a legal one. The strategy being pursued by the Government is to address all issues relating to same-sex parents in advance of the referendum, so that the issue being voted on is marriage alone and not anything to do with children. If the Bill were not enacted, then the referendum would become a de facto referendum on both marriage and adoption by same-sex couples, since section 20 of the Adoption Act 2010 currently allows all married couples to apply to adopt, and does not contain any language that could be construed as excluding same-sex married couples. Without the Children and Family Relationships Bill, approval of the marriage equality referendum would automatically render same-sex couples eligible to apply to adopt. Therefore, the timing of the Bill is clearly designed to separate these issues for campaigning purposes – but it is not legally necessary, and the referendum can proceed either way.
Assuming that the Government will make a point of enacting the Bill in advance of the referendum, the only other way that the Bill might not be enacted would be if it were found to be unconstitutional. As outlined above, this seems unlikely – but in the event that this assessment is inaccurate, how might such a decision arise? It seems highly unlikely that it could result from a challenge brought to the Bill post-enactment. Any would-be challenger would first have to demonstrate that they have the requisite standing to bring a challenge, and this would not be straightforward. Even if this hurdle was cleared, the timeframe involved in a court date being scheduled, arguments heard, judgments drafted and delivered (and an inevitable appeal to the Supreme Court), are such that it would be impossible to dispose of the challenge in the period of approximately six to eight weeks between the enactment of the Bill and the referendum.
The only other possibility is if the President chooses to refer the Bill to the Supreme Court under Article 26 before signing it into law. The Court would have sixty days to give its decision. In theory, this might run until after the referendum, but it would seem reasonable to assume that the Court would endeavour to dispose of the case before polling day. If the Bill were upheld, it would become law and be immune from any further challenge. If any part of the Bill were found to be unconstitutional, none of the Bill would become law and the Oireachtas would have to seek to enact a revised Bill. Whether the President would choose to do this in the absence of any clear constitutional concern over the Bill is an open question.
Even in this event, the referendum could proceed. However, a declaration of unconstitutionality would have potential for political damage. Although it would be a different scenario to the misuse of public funds to influence a Yes vote that was at issue in the McKenna and McCrystal decisions, it would be difficult for the public to distinguish between the two; it would be perceived as a case of the Government acting unconstitutionally as part of its preparations for a referendum. However, for all of the reasons set out above, it seems highly unlikely that the Children and Family Relationships Bill is unconstitutional to begin with, and thus the odds of the courts being asked to pronounce on it and choosing to strike it down in advance of the referendum seem very slim indeed.
Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw