Seanad Éireann - Volume 179 - 16 February, 2005

Civil Partnership Bill 2004: Second Stage.

  Mr. Norris: I move: “That the Bill be now read a Second Time.”

I thank the Leader and the Minister for Justice, Equality and Law Reform for the flexible manner in which they have dealt with this Bill. It looked this morning as if we might not have this debate as the intention seemed to be to vote the Bill down. That would have been the end of it as the Bill would have been torpedoed. There was some turbulence on the Order of Business but the democratic resolution is that we are here this evening and will have the opportunity to hear views from all sides of the House and from all ranges of opinion. This will be helpful to me in advance of my submission to the All-Party Committee on the Constitution tomorrow. I hope to incorporate some of the reservations and fears people may have about this Bill when I am speaking to that august committee.

[676] I understand that some people may have hesitations. I had a long-term relationship with an Israeli whom I recall saying that he thanked God I was gay because, otherwise, I would be the most square and conservative person in Europe. He was probably right and I might well have shared some of the views that will be expressed here this evening. However, through my lived human experience, I have come to different conclusions. It is on this basis, as well as on the basis of two years of hard work with an excellent team, that I have proposed this Bill.

The resolution we have come to is that the debate on the Bill will be adjourned at the conclusion of business. This means I will have an opportunity over the coming months to consider the advices of the Supreme Court, the constitutional review committee and the Law Reform Commission, which the Minister for Justice, Equality and Law Reform has correctly raised. Even if I do not finish what I have to say this evening, I will have an opportunity to round up further on.

Change is inevitable. It is almost 20 years to the day since the enactment of the legislation which made contraception available for the first time. For younger people, this is quite an astonishing change. It is also inevitable that legislation such as that represented by this Bill will make its way on to the Statute Book. The only question is the means by which such legislation arrives there. I am joined in this view by eminent persons such as Professor William Binchy, who could not be regarded as a revolutionary figure. He is a careful, legal-minded person and he expressed these views at a conference I attended in the Incorporated Law Society in Blackhall Place.

Professor Binchy’s view attained unanimous agreement among all those eminent legal people from different backgrounds. They agreed that this is coming and that the only question is the manner in which it is delivered. Will we get it through imposition from the European Court of Human Rights or our own courts? How often has the Oireachtas been chided by the courts for its apparent laziness or failure in facing up to social issues? Alternatively, will we accomplish this with dignity by the will of the Parliament of a free people?

The latter is my preference, especially if it were to be effected by this Bill. This would surely be timely. As I mentioned on the Order of Business, it is now some 50 years since the last legislation passed from this side of the House onto the Statute Book. That was a Bill sponsored by my late colleague, Professor W.B. Stanford, which provided for the humane treatment of pigs in abattoirs. Many would think the time has time for the Seanad to move on and to accept progressive legislation from these benches on the welfare of humans.

After all, this was the clear intention of the framers of the Constitution with regard to the function of the Seanad. It would also undoubtedly enhance the standing of this House in the eyes of [677] the public to initiate legislation that addresses a real and substantial social issue at the heart of Irish society, instead of being — as all too often has been the impression — merely a rubber stamp for Government legislation. From a purely egotistical point of view, I believe this appropriate because when I got involved in the area of homosexual law reform some 30 years ago, homosexual behaviour was a criminal offence. It would bring my career in this area to a satisfying conclusion if my name were on the Bill that finally and definitively removed discrimination.

However, this is not a narrow item, nor is it confined to gay people. Instead, it addresses the principle of legal recognition of the rights of all couples in committed relationships outside the institution of marriage and their offspring. It is almost two years since I put together a small committee to work on these proposals and I pay tribute to its members. They included Mr. Deaglán Ó Caoimh, Ms Hilkka Becker, Mr. Chris Robson, Dr. Mary Lyons and a young student, Mr. Iain Gill. We were joined at a later stage by Professor Ivana Bacik of Trinity College, Dublin. I also wish to acknowledge the help I received from a member of staff in this House whose experience in draftsmanship proved invaluable as he gave advice freely and voluntarily in his own time.

We began by compiling a list of those specific areas in which people felt there was a significant, disproportionate and unfair advantage exercised by society against those outside the religious or State institution of matrimony. These areas included the right to inherit from a partner, to be included in pension rights and to be recognised as next-of-kin in cases of hospital visitations, for example. We first produced a lengthy and complicated Bill after a period of hard work. We found, however, that it was too bulky, lengthy and complicated.

Instead, we produced what is now before the House, a Bill which has the virtues of preciseness, simplicity, directness and effectiveness. As I have already indicated, we looked at the principle underlying the Bill. This philosophy was announced clearly in this House by a former Fianna Fáil Minister for Justice, Máire Geoghan-Quinn, when she indicated in response to a mean-minded amendment from this side of the House that it would require clear, cogent and factual reasons to cause her to introduce discrimination of any kind against an Irish citizen.

Moreover, it is clearly understood that this situation affects not only gay people but also heterosexuals outside of marriage. More than one third of births are to unmarried parents and the rights of cohabiting couples and their offspring must be safeguarded. There have been examples of the problems in this regard. Many of us, including the Leader, heard an interview on Joe Duffy’s radio show last week with a young, gentle, inoffensive and decent woman who had been in a relationship with the love of her life. Upon his death after a period of years together the family was as sweet as pie until after the funeral when it [678] closed in, in pursuit of the property and money in forms of rent. The family even got a mechanic to hot-wire the couple’s car and persuaded the woman to hand over the registration book. The family possessed itself of everything in a squalid manner and this woman had no rights to defend herself against this. No one can suggest this is fair on a human basis. It has nothing to do with sex, it is an issue of fairness and decency.

In the area of tax, the brave and dignified couple, Katherine Zappone and Ann Louise Gilligan, have taken a case which is awaiting judgment and which the Minister has mentioned in his amendment. The tax situation has already been addressed in a minor way by this House as a result of material placed before it for consideration relating to the case of an elderly couple. The survivor was being charged because of his caring attitude as a spouse in placing the house in the name of his younger partner who subsequently died, which was not fair. We got support from all sides of the House and Mr. McCreevy honourably altered this provision. However, a piecemeal approach is not satisfactory as there is always the possibility of setbacks, which we had, I am sorry to say, for example, with what were called the “savage 16” cuts.

While many of them were reversed, a situation arose as a result of an appeal by a citizen to the Equality Tribunal where it was found that the spouse in a gay relationship had been denied rights of travel afforded to other spouses. Instead of addressing this inequality, which was brought to its attention by a body established by itself, the Government introduced legislation to copperfasten it by redefining the word “spouse”. That was extraordinary and was a pity. It is the only instance I can recall of discriminatory legislation being introduced by a government within the European Union against gay citizens in the past ten years.

The Government said it was preparing catch-all legislation. However, when I spoke to the Taoiseach approximately one month ago, it was clear that no such steps had been taken. As a result of my discussions with the Taoiseach he indicated that he would refer the matter to the All-Party Committee on the Constitution, which I welcome. While I will make a submission to this committee, along with many other people I made submissions to a committee, which we believed to be more relevant, that was the committee on the family and marriage. However, these submissions were brushed aside.

Some people have felt a difficulty could exist regarding the constitutional position and have suggested that to grant a degree of recognition through a Bill such as this would be to undermine the institution of marriage and this would be unconstitutional. Our advice is that marriage would not be threatened or undermined as long as we did not purport to give greater rights to the new institution of civil partnership or make it an alternative more attractive than marriage. We did not do this.

[679] The question of the common good was raised at the conference. I have no problem with dealing with this matter and I will supply evidence to the All-Party Committee on the Constitution that indicates that far from being inimical to the common good, supporting people in stable relationships creates a benefit for society in terms of the general increase in well being, in employment, in a drop in suicide statistics and in greater revenue yield — in other words in every measurable form. A recent article in the business press pointed out that major firms in the United States tend to locate in areas and cities with a vibrant and well-adjusted gay community. It is seen as one indicator of a vital, innovative society. Last year I spoke at the invitation of the managing director of IBM about a programme inside its organisation. The head of the entire network has instituted this programme not out of sentiment but because it is good business practice and it actually helps business.

I believe this forms part of Daniel O’Connell’s wonderful argument when challenged as to whether Catholic emancipation would remove some advantages from the ruling class. He made the point that far from doing that, human rights and dignity were not a finite resource, which were diminished by being handed out to other people, rather they were enhanced and multiplied the more people in the country had such advantages.

A question was raised about the impact on the Exchequer and whether this measure would cost the State money. According to a detailed report published in The Economist, the reverse appears likely to be true. In other words, a net benefit would accrue to the Exchequer with, for example, a smaller uptake of social welfare benefits. However, supposing there was a cost, I believe it could be justified anyway. It would mean that overpayments by single and gay people received by the State over many years would be redressed. In the past, society benefited disproportionately from taxes raised and distributed in ways that are of no use to a significant part of the population. In their initial phases necessary advances in our society have frequently appeared to cost money. Giving equal pay to women cost money. Would anybody now suggest that we should not have that provision? I shall address several areas tomorrow in my submission to the All-Party Committee on the Constitution, including those of adoption and foreign relationships.

I know people are concerned about adoption. Owing to advances in our society whereby young women no longer go to Magdalene laundries or have their children taken away and sent to America, they now keep their children. Each year fewer than 100 babies are put up for adoption, which is administered by an adoption board. The principle, with which I strongly agree, is that the welfare of the child shall be paramount. However, in some cases one of the partners in a gay relationship is the biological parent. Why should they not adopt?

[680] I must put on the record that civil partnership is not marriage. I believe in the separation of church and State. If the church should not be permitted to direct policy of the State, the same is true in reverse. The State has no right to instruct the church as to the way it should regard its own sacraments. I see no difficulty with this. I applaud and very much welcome the statements of people such as the Most Reverend Diarmuid Martin, Archbishop of Dublin, firstly in his Littleton lecture and subsequently at a press conference, to the effect that addressing the social issues and correcting injustice is not incompatible with the teaching of the church.

I will also place before the All-Party Committee on the Constitution evidence showing that Ireland is now lagging well behind other countries in Europe in this area. This is not a dramatic or revolutionary proposal; it is a tentative attempt at change. I am very grateful to the Minister for being flexible, to the Leader of the House for being so accommodating and to my colleagues who made suggestions that were helpful. I look forward to hearing what the Minister has to say and to continuing this debate, which will be adjourned this evening.

  Mr. O’Toole: I wish to share time with Senator Ross.

  An Leas-Chathaoirleach: Is that agreed? Agreed.

  Mr. O’Toole: I wish to acknowledge the extraordinary work Senator Norris has put into preparing this critical Bill. While I recognise that we will hear different views on the Bill, which is also important, I hope the Minister will just take it and run so that he can develop it, change it or introduce an alternative in its place, which I believe has been the intention of Senator Norris from the beginning and which is as it should be. We should see this as a progressive and innovative start.

This Bill does not constitute gay marriage or any innovative or new kind of marriage. This Bill is what it claims to be and we get what it says on the tin, namely, civil registration. It represents a necessary response to the extraordinarily varied relationships which exist and develop in modern society. It is a reflection and recognition of what is. It is an acknowledgement of a need that society at all levels has recognised. This matter has been mentioned by the Judiciary and the churches, and has obviously been discussed by politicians in various democracies around the world. It is a reality which needs to be addressed. Tonight we are taking a first important step in this regard.

As well as being a response to the varied relationships that exist and develop in modern Irish society, its need has been created by an increasingly litigious and greedy society. While in previous generations people recognised, perhaps in a non-vocal way, the importance of relation[681] ships and of people living in a house in which they had spent 30, 40 or 50 years, we now find that survivors tend to grab what is left and break it up with no recognition of the importance of a surviving partner of a relationship other than a “normal marriage”.

The issues that need to be addressed are wide and varied. Many of us in the trade union movement have looked at the difficulties created by an inability to deal with pension rights in simple cases. If one partner from a married couple, which broke up after a certain number of years, got involved in another relationship and died after, let us say, 30 years, the surviving person in that subsequent relationship has no access to the pension to which he or she should have access in any normal or fair circumstances. What we are doing here is a reflection of the need for equity and fair play. We are trying to ensure that the public can enjoy fair access to property, pensions and adoption and that the laws in such areas are just. We should not bring to this discussion the emotive baggage that has destroyed the debate on gay marriage in the United States. While I should state that I support gay marriage, I stress that it is not under discussion this evening. It is easy for those who have worries in that regard to accept this Bill.

Senator Norris has done democracy and the Seanad a favour by proposing this Bill. This House was among the first fora to discuss AIDS, for example. Senator Norris has brought us a step forward by initiating this debate. I ask the House to recognise the importance of this debate and to pursue the matter in a consensual way, if possible.

  Mr. Ross: I thank Senator O’Toole for sharing time with me. I do not share the extraordinarily conciliatory and moderate attitude of everybody on this side of the House. I support the Civil Partnership Bill 2004 but I do not understand what all the fuss is about because it is a moderate, liberal and sensible Bill. It has been introduced to recognise reality. I do not doubt that the Minister will be able to correct one or two technical problems in the legislation on Committee Stage. The Bill recognises the reality of relationships as they exist in Ireland today. The Irish people have voted with their feet. As Senator Norris said, one third of births are to people involved in extra-marital relationships. It would be ridiculous not to recognise in law as equal the substantial number of such relationships.

I cannot understand why this Bill did not almost pass on the nod. I do not understand why this moderate and sensible Bill has caused so much trouble in one of the Government parties. The legislation is a bit of good housekeeping. Perhaps some difficulties are being created because the Bill is being promoted by certain people on the Independent benches who have been identified with the liberal agenda. I would have thought it would have been far more sensible for the Government to decide to accept this sensible legislation.

[682] As Senator Norris has said, the Bill before the House is not about gay marriage. It recognises the realities of the present day and proposes to remove simple forms of discrimination which have arisen from the changes in Irish society. It relates to inheritance and pensions issues. It is an attempt to resolve the inequities which exist because things have changed in this country, thank God. It would be sensible for the Government to accept the Bill but I appreciate that that has not been possible.

This Bill does not need to be referred to the All-Party Committee on the Constitution. There is no need for it to go any further than this House or to be sent elsewhere for further consideration. There is a danger that the legislation will be buried because it is considered that it contains political difficulties. Anybody who reads the Bill will find such difficulties do not exist. Why does it need to be referred to the All-Party Committee on the Constitution? If it really needs to be considered by that committee — if there is a constitutional problem with it — the Bill should not have been introduced here in the first place. The legislation does not need to go to any other committee. It could easily be passed by the Seanad and the Dáil without much controversy. If there is any controversy, it has been created by the Government rather than by Senator Norris.

I suggest that the Minister for Justice, Equality and Law Reform should rethink the decision to refer the Bill to the all-party committee. Bills are traditionally sent to the committee as a delaying mechanism. Everybody knows that the 1967 recommendations of the All-Party Committee on the Constitution were buried. The committee was used at that time as a hole for controversial and sensitive matters. I have a feeling that such a destiny is intended for this Bill, although I hope I am not right.

Like Senator O’Toole, I pay tribute to Senator Norris. The courageous introduction of this Bill is the pinnacle of his great career of liberal crusading in this House. Even if Senators do not agree with the Bill, the House should pay tribute to Senator Norris’s great independence, clarity and courage in pioneering Bills of this nature, which are not necessarily popular because they are sometimes misinterpreted by others. I pay tribute to the Senator, who is asking us to show those for whom he is pleading in this Bill the same humanity he shows to others. I have heard him say that heterosexuality is a disease that should be tolerated.

  Mr. Norris: It is not curable.

  Mr. Ross: Such tolerance should be extended to the Senator in this context. I commend and applaud him on introducing this Bill. I hope it will receive a speedy passage through committee, rather than being delayed.

  Mr. Kett: I move amendment No. 1:

[683] To delete all words after “That” and substitute the following:

“Seanad Éireann declines to give a second reading to the Bill so as to permit further consideration of important legal and constitutional issues and in particular

(a) the resolution of current litigation regarding the recognition of a foreign same sex marriage;

(b) finalisation by the All-Party Oireachtas Committee on the Constitution of its examination of Articles 40.3, 41 and 42, relating to the family;

(c) publication of the Report of the Law Reform Commission on the Rights and Duties of Cohabitees.”

I compliment Senator Norris on introducing this Bill. It is fair to say that he has been one of the most ardent supporters of the marginalised in this House over the years. I do not refer only to those he represents tonight but also to those with disabilities. The latter issue is very dear to my heart. Such people are extremely lucky to have Senator Norris on their side. While I do not agree with the Senator this evening, I commend him on his efforts.

The family based on marriage has been the overwhelming norm in this country since the foundation of the State. That typical domestic situation has changed as social trends have developed. I do not doubt that the concept of marriage is under stress. Marriage breakdown is increasing. Poverty among children who are being raised by a sole parent is part and parcel of modern society. We know that children are being raised in one-parent families. Social ills have resulted from that and the poverty associated with it. All Senators encounter examples of that on a daily basis. I do not suggest that children from one-parent families are solely responsible for such ills but the phenomenon to which I refer is certainly a contributory factor.

Senator Norris spoke of the difficulties experienced at a human level by couples whose relationships do not conform with the norm, as outlined in the Constitution. The Senator spoke of the problems that would be experienced by a couple living together if one of them were to get sick and have to go to hospital. If the patient’s partner went to the nurses’ desk to inquire about the partner’s condition, which may be serious, they might be told they do not have the right to be given such information because they are not a next-of-kin. Such a situation would be difficult, frustrating and dreadful. We should examine such difficulties in one context or another.

Section 6 of the Bill is its core. It proposes that “parties to a civil partnership shall be regarded in law as having the same rights and entitlements as parties to a marriage valid in law under the Family Law Act 1995 and Civil Registration Act 2004”. The Senator proposes that “a civil partner[684] ship” should be defined as “a conjugal relationship”. In other words, those who are involved in a civil partnership will be considered to be those who are engaged in a sexual relationship. It is particularly important to emphasise that so that one does not think the Bill will benefit other people living together, such as siblings or other members of families, who are not involved in a sexual relationship with each other. The Bill will not alter the social welfare or taxation rights of such people, whose circumstances need to be examined in a Bill of this nature.

On a superficial reading, the Bill appears to correct what some people perceive to be a form of social inequity. That aspect of the issue needs to be the subject of a great deal more consideration before we can form a judgment on it that we are happy to stand over. As outlined in the amendment to the motion on the Second Reading of the Bill, the All-Party Committee on the Constitution is examining Articles 40.3, 41 and 42 of the Constitution, which refer to the family. The committee sought many contributions and there have been many submissions. Questions posed at the committee concerned whether gay couples should be allowed to marry, how the family should be defined, whether it is possible to give constitutional protection to families other than those based on marriage, and the rights that should be protected in respect of the natural father, the natural mother and the child. The committee is the appropriate forum in which to tease out all these issues because it allows for the consideration not only of the opinions of Members of the Oireachtas but also those of the public. It will provide the basis on which we will make our ultimate judgment call. The more experts with whom we engage and the more we involve the public, the better that judgment call will be. Therefore, it would be unwise for us to proceed with the Bill.

The amendment alludes to the case of Zappone and Gilligan, which is currently before the courts. The outcome of that case will enlighten us and we would be unwise to form an opinion until all the facts are known.

The Bill probably poses a direct challenge to the definition of the family contained in Article 41.3.1º of the Constitution which provides that “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”. I believe Senator Norris’s Bill may be in contravention of the Constitution but I am sure the Minister will tell us, more than adequately, whether this is the case.

A body of law in this area makes it clear that superior rights cannot be guaranteed to those in liaisons that do not fulfil the criteria under the Family Law Act 1995. If we disregard this, we are disregarding the fundamental principles of the Constitution.

  Mr. Norris: On a point of information, which may be helpful, the Law Reform Commission has [685] addressed these points and has come down positively on the side of the legislation. I will be citing its statement to the committee tomorrow.

  Mr. Kett: The Bill could represent a contravention of the fundamental requirements of the Constitution. It proposes to treat as equal all conjugal relationships involving cohabiting partners. Under Article 41, they are not equal. Additionally, while seeking to vindicate the rights of cohabiting couples, it ignores the duties that come with their relationships, including the duties of care to children and the rights of children in those circumstances.

The Bill is quite general in respect of the Family Law Act 1995 and the Civil Registration Act 2004. Questions in this area are difficult to address because, while the Constitution clearly recognises the family as the natural and primary fundamental unit of society, the rights of married couples are complex. These rights are not just covered by the Constitution but also by common law and statute law.

I recognise and respect Senator Norris’s passion for this Bill. I hope that when we finally set our sights on coming to terms with all the fundamentals of the Bill, as I hope we do, we can meet somewhere in the middle such that the Senator and the Government will be happy and the Constitution will be intact.

  Ms Terry: I thank the Minister for attending this debate. I thank Senator Norris for presenting this Bill and compliment him on having been to the fore regarding this issue throughout his public life. He has worked tirelessly on it and all of us, both gay and straight, owe him a great debt of gratitude for trying to ensure that we hold all citizens as equal before the law.

I understand that this Bill was the result of a cross-party effort, with Reid Professor Ivana Bacik doing much of the work, together with representatives of the ICCL and GLEN. I thank all these individuals. Last week Marie Mulholland and Chris Robson visited Leinster House and their contribution should not be forgotten in this debate. It is worth putting on record that many concerned and active citizens have been directly involved in the legislative process, not just professional politicians like ourselves.

The Taoiseach said, “These people who are in relationships which are not illegal, they’re not immoral, they’re not improper .... They say: ‘We want more equality and we want to be treated fairer’.” I agree with that view. Let me refer to the words uttered recently the Minister for Justice, Equality and Law Reform, Deputy McDowell. He stated the Dáil should pass legal reforms that formally recognise people who have entered into a civil partnership with each other regardless of their sexuality, and allow the surviving half of such partnerships to acquire next-of-kin status.

It is an absolute disgrace that the Government attempted to kill this Bill. I am thankful that cir[686] cumstances have improved since this morning but believe the Government proposed to abuse its position and the institutions of the Oireachtas by using the All-Party Committee on the Constitution as a comfort blanket. I do not know if the Government’s opposition to this Bill is borne out of indecisiveness or homophobia but it has let the House down in the way it has dealt with it today.

  Mr. Dardis: That is outrageous.

  Ms Terry: My party did not make a submission to the committee on this issue because it feared that what has transpired today would come to pass. The Government has deliberately blurred the lines of debate on this issue and claimed that civil partnership is an issue pertaining to Bunreacht na hÉireann. That is not the case. Legislation, if framed correctly and amended as necessary, should be such that the question of civil partnership would not impinge on the Constitution. While the Bill will not progress to Committee Stage at this time, I hope sincerely that it will do so soon.

For far too long, citizens of this State who have had all the responsibilities of citizenship placed on them, have been denied full rights. Despite what some would say about the institution of marriage being denigrated and coming under attack, it is a simple fact that every measure in this State’s family law revolves around marriage, including the issues of tax, social welfare, pensions and ownership. Many rights and entitlements depend on the presence of a marriage certificate in order to be granted in full. This excludes huge numbers of people who are not allowed to marry by virtue of their sexuality or who choose not to marry because of their life choices, which can be shaped by everything from personal circumstances to religious beliefs.

I will not go into further detail on the Bill because Senator Norris has done so and will be doing so again tomorrow. My party and most, if not all, other parties would agree with the broad thrust of the Bill. However, there are two points I would like to make on specific sections, the first of which concerns the dissolution of partnerships. In this regard, section 7(4) states: “The prescribed period for the purpose of subsection (2) [of section 7] is six weeks from the making of the conditional order”. I understand the reason for this six-week rule was the fact that the Bill is based on contract law and that such a period is the norm in those terms. I am disappointed by this. What hope have we of achieving equality if these relationships can be disposed of within six weeks, albeit on the same terms as a marriage, when a married couple must wait four years? It runs contrary to the call for greater equality to award the rights but not responsibilities of marriage. While the four year stipulation for divorce was inserted into the Constitution to convince a wary electorate in the divorce referendum, it will do the cause of equality no good to introduce a [687] type of “divorce lite” into the civil partnership debate.

Last July, Fine Gael became the first major political party in the State to produce a comprehensive civil partnership policy document. We believe it is necessary to ensure that it would be difficult to dissolve such a partnership in order to preserve its integrity. Should the Bill reach Committee Stage, Fine Gael will propose an amendment along these lines.

Section 6 is the critical section on adoption. It states:

The parties to a civil partnership shall be regarded in law as having the same rights and entitlements as parties to a marriage valid in law under the Family Law Act 1995 and the Civil Registration Act 2004.

The reasoning behind this section is clear. Due, however, to the somewhat pioneering nature of this legislation, any consideration of whether this section consists of an “attack on marriage” as prohibited by the Constitution is shrouded in doubt. Constitutional interpretation of the Bill is an art and not a science. The legal advice Fine Gael received, notwithstanding the thoughts of the Law Reform Commission on this issue, was that to grant adoption rights to the parties of a civil partnership would run foul of Article 41.3. 1º.

As a public representative, committed to the passing of legislation in this area, the last thing I and my party want is to plunge this country into a divisive referendum. This would either confirm the status quo or prompt organisations such as Youth Defence and their supporters to scream about “gay adoption” and allow a moral panic to envelop this worthy debate.

It is important that the fight for equality is not hijacked to the detriment of the entire agenda. The House is in tune with public opinion in discussing, and I hope awarding, partnership rights but it has some way to go before rights of adoption are widened.

Parenthood is an issue for gays and lesbians. Throughout the country, gay men and women are raising children. These children may come from previous, heterosexual relationships. These people may be guardians and gay couples are allowed to foster children — the sky has not fallen in as a result. The right to adopt children necessitates a proper public debate first but the debate is in its infancy. Besides, adoption is a remote possibility given the numbers of children put up for adoption each year in this country. I appeal to the opponents of the Bill and of any move in this area to temper their language when speaking on this aspect of gay rights, even if they cannot do so on other aspects of the Bill.

When my party published its document on civil partnership it received a handful of telephone calls in protest. Most people supported the partnership policy, as did the media, with the exception of one journalist. I urge people to acknowl[688] edge the work Senator Norris has done and the serious attitude he is adopting on this topic. Then we will treat the issue sensibly and with speed. For too long people have lived on the margins and we must address those issues. I hope we will do so soon and I look forward to a Committee Stage debate at an early date.

  Mr. M. McDowell: I pay tribute to Senator Norris for the work he has done in the past, and continues to do in this Bill, on the rights of cohabiting couples. This Bill, and the debate last May on the rights of non-marital and one-parent families, are valuable contributions to the development of policy in this important area.

I do not agree with Senator Ross’s point that this is a simple matter and should be waved through. That is superficial and glib. Senator Terry’s scriptwriter betrayed her by introducing a shallow and somewhat unfair note accusing people on this side of the House of being homophobic, hesitant and indecisive in the matter. We must be careful on this subject. Knowing Senator Terry as I do, I realise that her scriptwriter’s vindictiveness is at fault not her own view in making a charge of homophobia.

  Ms Terry: The views I expressed are mine.

  Mr. M. McDowell: I regret that the Senator should charge anybody in this House with homophobia.

  Ms Terry: I did not charge anyone, I questioned motives.

  Mr. M. McDowell: I could say the same about Senator Terry and question her on the same point but it would be equally unjustified.

I acknowledge on behalf of the Government that the position before the law of same sex couples, and others in caring relationships, including extending State recognition to civil partnerships between such persons, needs to be addressed. We cannot walk away from, ignore or postpone this issue.

Society has changed greatly over recent decades and the law must be kept up to date with the needs of society while at the same time preserving all that is of value in what we have, and respecting the Constitution by which we all are bound. Anybody who sees a constitutional dimension in this issue should participate in the All-party Committee on the Constitution and not pretend that this issue can be dealt with on a non-constitutional level.

Senator Kett rightly identified two aspects of this Bill which cause difficulty. I agree with Senator Terry in that the analysis available to the Government is that section 6 is contrary to the Constitution and would be struck down by the courts. I acknowledge that, as Senator Norris says, the Law Reform Commission takes a different view but the advisers to Senator Terry and to [689] the Government take the view that on a detailed analysis the proposal in this section is contrary to the Constitution.

Senator Kett’s second point, with which I agree, is that this proposed legislation is restricted to “conjugal relations”. Therefore, two friends, or sisters, or any two people who have spent their lives together caring for one another and sharing their home are excluded by the language in section 3.

In the context of sexuality are two people who have a non-sexual relationship to be substantially discriminated against because theirs is a non-sexual relationship? If not, the definition of a civil partnership in section 3, which makes a sexual conjugal relationship a necessary precondition for a civil partnership, is discriminatory. We must consider this carefully. These are two points of principle and not of conservatism. They have a significant import. Are we creating a new set of relationships based on a sexual underpinning or are we willing to accord civil partnership status to people who have no sexual relationship?

  Mr. Norris: Sexual and conjugal are not coterminous.

  Mr. M. McDowell: I do not know what the term “conjugal” means in that context if it is not designed to mean something akin to sexual in nature. I do not think two elderly bachelors living in a farmhouse in County Kerry would regard their relationship as conjugal, even if they were fully committed to looking after each other.

  Mr. Norris: If they were in Kerry they certainly would.

  Mr. Coghlan: God forbid that they would split up.

  Mr. M. McDowell: In these two sections, which are not simply details but central issues in the Bill, there are major constitutional, philosophical and discriminatory issues to be addressed.

Irish law already takes into account in a number of ways non-marital relationships. As referred to earlier, capital acquisitions tax has been changed. The Guardianship of Infants Act, as amended, provides for the appointment of unmarried fathers as guardians of their children in certain circumstances. The Domestic Violence Act 1996 also covers non-marital relationships.

The needs of cohabiting couples, many of whom want to share property, home life, income, and perhaps deferred income in the form of pensions, and those who want to care for each other and be cared for in that context in a next-of-kin hospital situation and so on, require legal protection and are imminently suitable for legal reform. As a society, we must give thorough consideration to what course we can and should follow in this very sensitive area. We must decide what we are trying to achieve. For example, do we want to focus on particular rights of importance to [690] cohabiting couples, which should be given the protection of law or do we want to give cohabiting couples a status equivalent to marriage, as proposed in section 6 of the Bill? Extending some State recognition to partnerships between persons who decide to create a relationship of mutual dependence, care and love between themselves, whether the relationship is heterosexual, homosexual or non-sexual, is qualitatively different from the alternative course, which is providing a status equivalent to, and attracting the same rights and entitlements as conventional marriage which is up to now a status based on a male-female monogamous relationship for the duration of the life of the marriage.

Heterosexual couples currently have the option of marriage open to them. We must ask ourselves what it is about marriage that is causing many heterosexual couples to say “No thanks”. Why will they not avail of all these extra rights in terms of pension, property, tax and social welfare? What is holding these people back from saying “no” in this regard? While I am not in a position to offer a comprehensive answer to that question now, it must be addressed. It might raise the question that there are obligations going with marriage, which they are reluctant to undertake. Senator Terry put her finger on the point when she criticised the Bill — even though it is a criticism I would not share in regard to civil partnerships — on the basis that the dissolution provisions are a good deal more lenient than those which currently apply to marriage. If a civil partnership, which has all the attendant rights of marriage, has a let out of six weeks or whatever while marriage under the Constitution cannot be dissolved except under the four year provision, if one is talking about heterosexual cohabitants, one must ask whether it is marriage life that is on offer here, identical in terms of all the rights but different in terms of the fundamental obligations and duties. This is a question which will not go away. I am making that point because we must be honest with each other. I note that section 6 does not mention duties except, by inference, mutual duties. If one is suggesting a relationship which has all the entitlements and rights, but none of the obligations, except in so far as they are bound up in mutual rights, then one is clearly in danger of infringing the constitutional provisions for the protection of marriage. This is giving everyone all the advantages of marriage while discouraging them from undertaking any of the onerous responsibilities.

Heterosexual couples have the option of marriage open to them. If we are to offer them something with all the rights and entitlements of a valid marriage, it should also have the same duties attaching to it. I am one of the few politicians who is prepared to say that in this rights culture in which we live, no right is worth a damn without a co-relative duty. That was taught to me by a former Member of this and the other House, the late John Maurice Kelly, in jurisprudence classes in UCD. Rights without duties are mean[691] ingless. They are the stuff of which Soviet constitutions are made but they are nothing unless there are attendant duties.

  Mr. Dardis: Even the Jesuits and Dominicans can agree on that.

  Mr. M. McDowell: Someone must accord the corresponding duty to every right. The point I am making in regard to this issue is that marriage as envisaged by the Constitution is not simply a basket of rights. It is in explicit terms stated to be a relationship which carries with it profound duties.

Section 6, in effect, would mean marriage, albeit by another name. It is doubtful whether there are any advantages to providing in law for an institution for heterosexual couples which mirrors marriage to that extent. I agree that the situation is different for homosexual couples, for whom marriage is prohibited at the moment. I want to take this opportunity to put it on the record of this House that the Government is unequivocally in favour of treating gay people as fully equal citizens in our society. That is why the Government parties, and all parties in the House, concurred on the decriminalisation of homosexuality. We passed other equality legislation on sexual orientation to ensure that people cannot be discriminated against on the basis of their sexuality.

Many same-sex couples may not want an institution which gives them all the rights, entitlements and duties of marriage. They may want a form of civil partnership which protects certain rights of importance to them. People may not want to enter into a life-long relationship but something short of that. It is worthwhile remembering that there are people who simply have a platonic relationship, to which there is no sexual dimension, who may want their home, pension, tax, welfare, inheritance rights, rights of next-of-kin in regard to each other in the case of illness and the like, capable of some form of recognition.

In November 2004, the Taoiseach, in response to a question concerning gay marriage, emphasised the importance of dealing with the situation of same-sex couples and of rational debate on the issue. He said that we should not get the question of marriage mixed up with the many inequalities and unfairness — he used the phrase “we are making their situation fairer”— such people face. He advocated trying to deal with these issues on the basis of what people have to surmount in their daily lives.

Dr. Diarmuid Martin, the Catholic Archbishop of Dublin, to whom Senator Norris paid tribute, stated:

I recognise that there are many different kinds of caring relationship and these often create dependencies for those involved. The State may feel, in justice, that the rights of people in these relationships need to be protected.

[692] There is no huge difference between us philosophically on this issue.

We need also to consider the position of people whose relationship has no sexual element and who may need legal protection and recognition for what is de facto a relationship based on a community of property or income, which flows from a caring relationship between them. All of these needs must be considered. The Government believes that if significant social change is to take place, and it is taking place — the Government does not like King Canute stop social change — it must have a fairly broad measure of support across society.

6 o’clock

I compliment Senator Norris on including heterosexual couples as well as homosexual couples in the scope of this Bill because it makes sense from the perspective of fairness and equality to expand the debate to include others in caring relationships. I go one stage further and say we should also deal with non-sexual people in a relationship of caring and dependency.

A major problem arises in section 6. I made the point that Article 41.3.1º of the Constitution provides that 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 advices available to me are that this article precludes the State from doing what section 6 purports to do, namely, equating the institution of marriage with other forms of relationship or partnership which do not carry the attendant obligations.

There are also problems of a legal and technical nature, of which the following are examples. The Bill does not contain an explicit list of rights and entitlements. Any Bill creating a new civil partnership institution would have to include a list of those rights and entitlements. The rights of parties to a valid marriage are complex and are not contained or to be found in any single instrument. They derive from the Constitution at one level, from statute law and from common law as interpreted by the courts. The question is precisely what is meant by the reference to the Family Law Act of 1995. This question is fundamentally important because the Act of 1995 does not, for example, extend to the validity of a marriage, neither does it provide for the types of rights referred to in the explanatory memorandum to this Bill.

The Bill also lacks provision in regard to duties. In this context, it must be borne in mind that marriage is not simply a series of rights, although it may seem that way, I fully acknowledge, to people who are kept out of it and who feel they are being denied those rights. Marriage — the same would have to apply to any new institution which would mirror it — is a complex of duties. Married people owe each other many judicially enforceable duties such as a duty of maintenance and a special duty in respect of a home used by them. If two people in a marriage use a place as their home, it becomes subject automatically and [693] by operation of law to the Family Home Protection Act. Married people owe each other many other judicially enforceable duties such as the question of bigamy and competence as a witness. A married person is not competent to testify against a spouse. There are other issues such as privilege, divorce, judicial competence over capital assets and dividing up the assets of the persons. A few years ago this was not a matter of great importance but now it is. In family law cases major decisions can be made involving millions of euro being divided this way and that between the parties by the courts. This Bill is silent on these matters. Section 6 states that civil partners shall be regarded as having the same rights as parties to a marriage.

From a liberal perspective, it is not liberal to say that the only basis on which gay couples or a non-sexual couple can make arrangements for their next-of-kin status and the like is if they agree to a relationship which has all the incidents of marriage. We should think of this in a more long-term way and from a liberal perspective and ask ourselves whether this Bill would be fair to those who simply want to make some arrangements for their lives without making all the arrangements which marriage carries in its train.

In pointing out these matters, it is my intention, on behalf of the Government, to be helpful rather than negative. I hope Senator Norris accepts that. These are complex issues. If, as it appears, the Bill is an attempt to be comprehensive, it is not achieving its purpose. If it is an exercise in liberalism, and I know the Senator would regard it as such, it is not liberal if it indicates to couples who want to avail of a civil partnership that the only basis on which they can do that is by undertaking all the rights and incidents of marriage under our Constitution, statute law and common law.

The Bill does not deal with children’s issues adequately, with which Senator Terry agrees. Sections 13 and 14 on foreign civil partnerships is generous but probably not in accordance with the Constitution and does not address issues such as the potential for fraud or the wide disparity between the laws of foreign jurisdictions.

The proposals in the Bill would have extensive implications for tax, welfare and civil legislation. Tax accruing to the State in the area of income tax, capital acquisitions tax and the like would be affected. I agree with Senator Norris that the mere fact that something can cost money to the Exchequer is not a reason, as we know today from consideration of the Article 26 reference, for putting into our law something which is unfair or for keeping it there. However, we have to think long and hard about whether our tax system could survive if generalisation of its provisions extended to everyone in society including two elderly farmers in Kerry who, because they care for each other, are entitled to be regarded as a family and to get double tax allowances. We have to think long and hard about that as a proposition and we might find the result would be that we [694] would have to dismantle the present tax system, which is remarkably pro-family.

Notwithstanding the shortcomings of the Bill, I wish to make a final point because I am aware I am trespassing on the House’s time. It is most emphatically not the case, as Senator Terry seemed to suggest, that those on this side of the House decided to try to derail this Bill today. I record that in the days leading up to this debate every means was sought to avoid voting down this Bill. I am glad Senator Norris, the Leader of the House and other Senators have come to an agreement whereby that will not be the outcome of this evening’s proceedings. It was most emphatically not the purpose of the Government to vote down this Bill, sabotage or derail it, or to say that the issues covered in it are too complex to merit early consideration. That is emphatically not the Government’s position.

We must emphatically reject the simplistic argument offered to us by Senator Ross that the merit of this Bill is so blindingly obvious that there should not even be a debate on it and that it should be nodded through. In the name of all that is good, that remark simply does not stand up to even a ten second scrutiny. I am sorry to say that in the absence of Senator Ross; I would have preferred to say it to his face. This Bill is not something which should be nodded through. It is not self-evidently so compelling in its terms as to merit no further debate; the exact opposite is the case. This Bill is a legitimate effort to counter unfairness and hurt for many people in Irish society and I accept it in that spirit.

The Bill is not something which could be pushed through on the nod or accepted uncritically; it must be teased out. Of course it is of interest whether the Supreme Court rules that two gay people who are married abroad can have their marriage recognised here, as is now being ventilated in the courts. If the courts decide that is the case, many of the issues in terms of the Law Reform Commission’s view of the world and the one shared by my legal advisers and Senator Terry would disappear.

It is relevant whether we are content in future to have family rights restricted under the Constitution to unit groups in society based on matrimony, which is the issue being decided on currently by the All-Party Committee on the Constitution. It is also right that we should wait for the Law Reform Commission to report on its consultative paper on the rights and duties of cohabitants. It uses the horrible phrase “cohabitees” and I do not know from where they got that phrase; “cohabitants” is the one I would use. We should wait and see what some of these issues are. The Law Reform Commission, when it gets wind of the contrary legal advice of at least two parties in this House, might take a second look at this and acknowledge there is perhaps more to this than meets the eye.

I have great pleasure in saying it is not true that the Government panicked and tried to derail this process. The Government set out, and I am sure [695] the Leader will confirm this in her contribution, that our definite priority in this matter was not to divide the House but to come to some arrangement that would accommodate this Bill as a meritorious assay in this area without defeating it because of the issues that I have raised. Therefore, I am grateful to Members of the House for allowing me to participate in this debate. This Bill is very important and the areas it covers cannot be deferred for another generation or another Parliament to consider. This is an issue for us to consider now, but that does not mean that we can commit the sin dangled in front of our noses by Senator Ross of nodding through something as important as this without looking around at least a few corners.

  Mr. Coghlan: Perhaps he was simply trying to provoke the Minister.

  Ms Tuffy: I support this Bill on behalf of the Labour Party and I thank Senator Norris for introducing it. In doing so, and in his previous work in the Seanad, the Senator promotes this House which is often ahead of the Dáil in introducing measures such as this.

This Bill recognises social reality. Senator Kett mentioned the Taoiseach’s referral of the issue to the All-Party Committee on the Constitution, of which I am a member. The committee will give the issue thorough examination and is already looking at the entire area that incorporates this issue, but what happens to its reports? Last year the ninth report was issued on property rights and nothing has been done about its recommendations.

We do not need any more information. Senator Kett spoke about expert knowledge but we do not need expert knowledge on this issue. This Bill is a recognition of reality and the fact that society is ahead of us as legislators. We must now legislate to deal with the way families are being formed. People are entering non-marital unions and the law must recogise and support them.

The Minister for Justice, Equality and Law Reform concentrated on rights and obligations, reducing this to a simplistic focus. This Bill has nothing to do with the issue of rights versus obligations. People who make up any type of family take on obligations to each other and there is no avoiding them. Heterosexual couples who can get married but choose not to, do not do so to avoid obligations. This issue is complicated but it is an increasingly common family unit. The quarterly figures from the Central Statistics Office show that 30% of births take place outside marriage. If a person has a child with someone, he or she takes on obligations.

This Bill has nothing to do with rights and obligations, it is about supporting families. The Department of Social and Family Affairs stated that in the context of increasing diversity in Irish society, we need an inclusive definition of “family” that encompasses all types of families. To be [696] inclusive, a definition should be capable of embracing such diverse family forms as those made up of grandparents and children, foster parents and children, lone parents and children, unmarried partners and children as well as same sex parents and children.

This Bill is part of that process. It does not include the example the Minister gave of the two elderly bachelor brothers living together but we have already taken measures to try and support such a unit in the tax code. Why would we not do so? Such people need to be supported and when they live as a unit, it would be wrong to leave one homeless if the other died. Of course we should support any type of unit and the measures in this Bill will support families of the type outlined in the legislation. We should also take measures to support the other types of families the Minister has mentioned.

We should do so because we want to support a large portion of society. There are good economic and social arguments which support this approach, even for those from a socially conservative background. Senator Norris’s Bill promotes two people forming a stable relationship, something we should support.

There are sound economic reasons for this approach. Our legislation is contradictory. When the Minister spoke of rights and obligations, if that is the focus, why does the tax code not recognise heterosexual, unmarried couples or same-sex couples in terms of tax bands, while the social welfare code recognises unmarried heterosexual couples as married? The Departments do that to save the State money. We are, however, losing money. If people form stable relationships and we protect them through the social welfare and tax systems, we help society. If we leave someone homeless or if we must provide a person with local authority housing because he or she cannot inherit the home shared with a partner, it will cost the State more and that is a waste of money.

The Taoiseach has referred this matter to the All-Party Committee on the Constitution because he wants to kick it into touch and he does not want to face up to the issue. It will be dealt with inevitably. Other countries are ahead of us on this issue. Society is ahead of the Legislature on this matter. The train is leaving the station and the Government is either on it or standing on the platform. The Government should hop on the train with Senator Norris and allow for positive legislation that supports families.

  Mr. Norris: The Government is underneath the train.

  Mr. Dardis: It is important to state that there is no argument on either side of the House about what should be done or about Senator Norris’s approach to all of this. The question is whether the Bill is the correct approach and there might be some argument about that.

The Senator has done us a considerable service by having this matter debated on the floor of the [697] House because there is a reluctance to consider these matters. Many people have congratulated him, as I would, on what he has achieved to date and his unswerving dedication to a difficult cause over many years. He should be commended for that as he should be commended for bringing forward the Bill.

It is also important to state, as confirmed by the Minister, that there is no homophobia on any side of the House. If there is any minuscule amount of homophobia it is not confined to one side of the House. We have come a long way since 1993 when Máire Geoghegan-Quinn, as Minister for Justice, introduced legislation to decriminalise homosexual acts.

I was involved to an extent with siblings who had been living together for years in very expensive houses who were crippled with capital gains taxes when they had no money. Something was done about that. Anti-discrimination legislation specifically stated that sexual orientation was no grounds for discrimination so we have come some way.

I agree with Senator Norris that we need to move on. Do I accept that there can be loving relationships between people of a single sex? Yes, of course I do. Do I believe they can be permanent? Yes, of course I do. Do I believe the State should support that? Yes, of course I do. There is no argument about that.

The Senator made an important point in the explanatory memorandum about the common good and the public good. We are charged with that and we can have differences as to how we interpret it. It is important that people who have property and who are in a loving, stable relationship should be able to hand on the property. It would be totally wrong if because someone had a natural child, that child would take precedence over someone who had lived with a partner for 30 years. That would be wrong and it needs to be rectified. There is no debate about any of those matters.

The constitutional aspect of this legislation has been raised. I find myself echoing many of the remarks made by the Minister even though I have not discussed the Bill with him. I take issue with section 6 which provides that the parties to a civil partnership shall be regarded in law as having the same rights and entitlements as the parties to a marriage. I made the point on the Order of Business this morning that there was a constitutional dimension to this issue. That was rejected by the Opposition. I still insist that there is a constitutional aspect to it. That view is supported by G. W. Hogan and G. F. Whyte in the fourth edition of The Irish Constitution by J.M. Kelly published in 2003 which states that regarding the constitutionality of State support for non-marital families, an issue not yet being addressed by the courts is whether the Oireachtas can provide equivalent statutory protection for non-marital families as is currently provided for marital families. More specifically, it poses the question as to whether the Oireachtas could legislate to [698] recognise common law marriages, same-sex unions or polygamy. It states that the issue is whether or not the constitutional obligation to guard with special care the institution of marriage requires the State to maintain marital families in a privileged position in law, in which case the legislative promotion of alternative social units to such families might be unconstitutional, and that support for this view might be gleaned from the description of the family based on marriage in Article 41.1 as, inter alia, the primary unit of society. There is, therefore, a constitutional issue which must be addressed.

There is the question of legal property and inheritance rights about which the Minister has spoken. Regarding the matter of the family, at the all-Party Committee on the Constitution, Dr. Finola Kennedy quoted Senator Barack Obama of Illinois and first African-American president of the Harvard Law Review. The quotation is from the book Dreams from my Father, a Story of Race and Inheritance, published in 1995 and reprinted in 2004. Senator Obama asks:

What is the family? Is it just a genetic chain, parents and offspring, people like me? Or is it a social construct, an economic unit, optimal for child rearing and divisions of labor? Or is it something else entirely: a store of shared memories, say? An ambit of love? A reach across a void?

There are difficulties regarding how we define the family and constitutes the family.

Regarding the other aspects of the Bill, I have problems with the phrase “conjugal relationship”. I am not sure what it means. It should be defined. At the all-party committee or perhaps in the Constitutional Review Group, there have been discussions regarding how the phrase can be defined and how it relates to the family.

There is another difficulty to which the Minister has referred. I do not see how it is not discriminatory that such a relationship can be immediately dissolved because it has irretrievably broken down when there is a four-year wait in the case of a marriage. That discriminates against married people. There must be consistency across the board, and that is an inconsistency which, in my view, amounts to a defect.

I also have some difficulty regarding section 12 which provides “Where two persons register as civil partners of each other, the civil partnership is voidable if, at any time when they do so, either of them did not validly consent to its formation (whether as a result of duress, fraud, mistake, unsoundness of mind or otherwise).” That seems the same as a person walking up the aisle having a mental reservation and assuming that, therefore, the couple are not validly married. That constitutes an easy get-out clause.

Section 14(2)(a) refers to capacity to enter into a relationship. Does that mean somebody with an intellectual disability does not have the capacity to enter into a relationship? I accept that the [699] Senator would never suggest that. However, I wonder about that section.

Like Senator Tuffy, I am a member of the All-Party Committee on the Constitution. There is one example of that committee having a very significant effect. That was in regard to abortion. There was a constitutional amendment which was adopted by the people. Something as sensitive and as difficult as that was debated and the result was consensus. That is what the All-Party Committee on the Constitution can achieve — it can achieve consensus. That is why it is important for Senator Norris to come to the committee, as he will be doing tomorrow, and make these points.

There seems to have been some confusion this morning regarding whether this Bill can be referred to the All-Party Committee on the Constitution and be dealt with in a legislative way. The All-Party Committee on the Constitution does not have that competence because it is not a House committee, it is an all-party Oireachtas committee. While it can consider the contents of the Bill and propositions contained therein, it cannot go through it line by line and amend it in a Committee Stage debate. It is important to state that. The All-Party Committee on the Constitution has a role and can make a positive contribution. I accept that something needs to be done quickly to regularise the situation and allow people to enjoy the stable unions about which we have spoken.

On a lighter note, I am disappointed that Senator Norris has succumbed to the “in relation to” disease which Senator Quinn and I have campaigned for years to eradicate from our legislation. Here it is in this Bill introduced by someone who was described recently on television as a man of letters, albeit with a camera. How he can succumb to the “in relation to” disease I do not know.

  Mr. Quinn: I propose, with the agreement of the House, to share my time with Senator Mary Henry.

  Mr. U. Burke: Is that agreed? Agreed.

  Mr. Quinn: I congratulate Senator Norris for introducing this Bill. Modern life has changed. The way we think has changed. We need to examine these matters and to tease out many questions we had not thought of before. This debate has been a valuable contribution. I wish many more people could hear it because it has opened my eyes to a whole range of topics, challenges and questions I had not thought of before. I am pleased we are debating this issue. It is a topic we must not avoid. We must listen to different opinions. That is what we are hearing today.

I have one concern, namely, each time we recognise non-marital relationships in some way in law we in some way weaken the whole institution of marriage. I examined this Bill to see [700] whether it passed my test of not weakening the institution of marriage, and that is something we have not considered well enough.

Like the Minister I looked up what the Archbishop of Dublin, Dr. Diarmuid Martin, said. He stated:

It may, in certain circumstances, be in the public interest to provide legal protection to the social, fiscal and inheritance entitlements of persons who support caring relationships which generate dependency, provided always that these relationships are recognised as being qualitatively different from marriage and that their acceptance does not dilute the uniqueness of marriage.

I fear that section 6 does that. I am not sure but I suggest it might do so because it states that such relationships are equal to marriage.

Senator Dardis has clearly pointed to the fact that if we regard such relationships as equal to marriage we discriminate against married people. That concerns me because in the Constitution and in our way of life we have recognised marriage as something different, something unique and we have placed it on a level. This Bill proposes to place other relationships on exactly the same level, and this is perhaps where Senator Norris and I disagree. It is not enough for marriage to be equal. Marriage must be at a different level and have a different status. If we do not do that we are in danger of damaging, weakening and demeaning it.

I hope we can deal with this issue without getting bogged down in the issue of gay marriage, which is causing such disruption, particularly in America. To many people, both here and in America, to propose gay marriage is an affront to their religious sensibilities. Rather than get involved in that debate which has every likelihood of being indeterminable, we should concentrate on the kernel of the issue, which is the need to provide a legal structure for the rights and obligations of those who enter into non-marital relationships.

Regardless of whether people or married or not, the State has an interest in promoting stable relationships. They are the glue that hold our society together. As soon as we enter this area we immediately run the risk of falling into linguistic traps. I see one such trap in section 3 of the Bill. It has been talked about before. It refers to a civil partnership as a “conjugal relationship”. This begs the question. The most commonly accepted meaning of the word “conjugal” incorporates the concept of marriage. I looked the word up in a dictionary. The Latin verb conjugare which is the root of the English word means “to join in marriage”. I have a different opinion from Senator Norris because I believe it includes the sexual connotation. A better term needs to be found although I do not feel qualified to offer one. I realise it is necessary to distinguish what we are talking about from relationships that result from family members or friends living together.

[701] Inevitably the question of the Bill’s constitutionality will arise. Members will recall that the Constitution review group made a number of recommendations regarding Article 41 in its 1996 report. The group took the view that the concept of the family in Irish society had undergone significant changes since 1937 and recommended that Article 41 should be amended to take this change of attitudes into account. On non-marital relationships, it recommended that although the State’s obligation to protect marriage should be retained the revised Article 41 should explicitly state that this should not prevent the Oireachtas from legislating for the benefit of non-marital relationships. We have debated this issue. The Minister clearly made his point.

The argument can and no doubt will be made that this Bill cannot stand until such a constitutional amendment is passed. On the other hand, the Law Reform Commission for its part believes that the law as it stands does allow the Oireachtas to legislate for the non-marital family, provided it does not treat such relationships more favourably — I think that is the term it uses — than the marital family. On that basis this Bill could get through. As usual the lawyers differ and we must see what emerges. I have a difficulty with the words “more favourably”. I believe marriage is a different state and on a different level and if we put other relationships on the same level we diminish the status of marriage.

I thank Senator Norris for initiating this debate. It is valuable and has opened my eyes to many questions and challenges I had not thought of previously. It is not over, it will go on. There is a little bit of Latin I love to drop in and it is seldom I have a chance to do so —obesa non iam contava, the fat lady has not sung yet.

  Dr. Henry: I hope the Senator was not talking about me.

  Mr. Norris: I think it may have been me.

  Dr. Henry: I thank Senator Quinn for sharing time. I thank Senator Norris for all the hard work he has put into this Bill. I thank the Leader for ensuring this debate took place this evening and for her judicious use of “horsetrading”— that is probably not the right word — to ensure the debate would proceed. I also thank the Minister for his extremely thoughtful and useful speech.

  Mr. Norris: Hear, hear.

  Dr. Henry: It carefully teased out much of what is in the Bill. While we support Senator Norris’s proposition some of us have concerns such as those raised by Senator Quinn. Section 6 is very difficult. It provides that heterosexual relationships will be the same as marriage. They will have the same rights but not the duties as was pointed out. I, probably more than any one in the House, have had experience of working with people who simply will not get married, even though I [702] thought it was the best thing for them to do. For 35 years I worked in the Rotunda Hospital and even though it was not my job or my duty to have anything to do with advising people on their private life I could see that at times people were getting into fairly serious legal difficulties as time went on. I worked there over a period when the rate of birth of non-marital children went from 3% to 30%. This did not mean that their parents were not in stable relationships. The vast majority, 90%, were in stable relationships. I do not know if they are more likely to get involved in a civil partnership than in marriage from the various reasons they gave me as to why they were not getting married. They never got around to it. They were saving for the wedding. They were saving for the house. They were saving until the third child was born because they did not want the first two to be discriminated against because they would be married when the third was born. I have heard the most amazing explanations, all very worthy, but I am not convinced that these people would be more likely to become involved in a civil partnership. It is a private decision that people make. Sometimes I wonder if it is due to the fact that we delayed introducing divorce for so long that it became perfectly obvious that it was acceptable to have non-marital relationships and there would be no problems. Now we have a situation where all of us who could have done something about bringing in divorce much earlier face this confusion. Those who are most affected are same sex couples. I salute my friends Dr. Katherine Zappone and Dr. Ann Louise Gilligan who are in the Visitors Gallery on their courage in bringing forward their case——

  Mr. Norris: Hear, hear.

  Dr. Henry: ——which is the subject of the first part of the Government amendment. I do not like the Legislature being totally influenced by the courts. I like us to have a fair amount of influence on it and was looking forward to Committee Stage. We need to be careful that in protecting marriage we are not letting the family down. There are an enormous number of different family types in Ireland. I think particularly of the position of children because same sex couples who may, as others have said, have had children in a previous heterosexual relationship are in a terrible position given that they cannot adopt or have guardianship or custody of that child. This is a really difficult situation because if something happens to the biological parent what is the position regarding that child? Perhaps the Minister would address the issue of such couples who have had children by a surrogate mother because that is far more widespread than one would think.

  Mr. M. McDowell: I know.

  Dr. Henry: Some public cases have been in the press but there are others and I have raised this matter here previously. We will have a messy case [703] in the courts one day and regret it very much. For the stability of society, the rights of children and the happiness of those in same sex relationships I hope we can make progress on this issue as rapidly and comfortably as we can. The stability of society, including parental leave, is what we discussed all afternoon and it is to all our benefit to encourage that. I again congratulate Senator Norris on his courage in introducing the Bill.

  Ms O’Rourke: I too wish to join in the praise to Senator Norris for his courage which he has displayed in spades for many years in the way he has addressed issues. Before speaking on the Bill I thank the Senator for bringing it before the House where we had an acrimonious mini debate this morning in which, across the House, various insults were heard.

  Mr. Dardis: Never.

  Mr. Coghlan: Not by all of us.

  Ms O’Rourke: Yes. We sound like a bad opera, “oh no, oh yes”. He is behind one or in front of one or whatever.

  Mr. Dardis: Did the Senator say “pantomime”?

  Ms O’Rourke: I did not, I said a bad opera.

  Mr. Coghlan: Singing as well.

  Ms O’Rourke: No, we are not singing. I wish to echo something the Minister said, namely that it was never the Government’s wish to vote down the Bill. I was involved for weeks in seeking to bring about some agreement. Senator Norris will be aware of that.

  Mr. Norris: Yes.

  Ms O’Rourke: I have spoken with him on a dozen occasions in person and on telephone about his Bill. I have been aware of the Bill from its gestation. I took the trouble to go to see the Taoiseach last Wednesday night on some matters but mostly on this matter and we had quite a thorough discussion on it. I take my duties as Leader seriously so what I am saying is the truth. There was never an intention on behalf of the Government to wilfully come in and vote down this Bill. I strongly regret that was the tenor of this morning’s exchange but that was then and this is now. In the interim we had various other discussions with the Minister, who proved extraordinarily accommodating, the Taoiseach and my own party members. Whatever about the relationships of which we speak one has to keep all sorts of relationships going as well and that took some doing.

  Mr. M. McDowell: The uncivil party.

[704]   Ms O’Rourke: Not really. I regret very much that the word “homophobia” came into the debate. I am not castigating Senator Terry because I have found her to be extraordinarily open and transparent. I regret that the word “homophobia” was heard on this side of the House. Homophobia is a strong, ugly word which I have grave reservations about ever pinning on a person. In its way, it is a form of complete discrimination. Homophobia has never come into discussions with members of my party. On behalf of all of us I regret that remark and deny it was connected with what we proposed this morning.

A matter was raised while we were in the audio-visual room last Wednesday when Senator Norris and his colleagues gave a fine presentation on the Bill’s proposals. The same point was raised in the House by several Members who, for one reason or another, might not have been able to attend the presentation. The issue is whether there is discrimination against married couples. I know from experience within my own family that if a married couple wish to separate or divorce there is a very long lead-in time before a divorce can be obtained and this proper. The ease of dissolution which appears to be provided for in this Bill could in effect be a discriminatory measure against a married couple who must go through the hoops, so to speak, to disengage from one another. I approve of that arrangement because I believe people should go to mediation and wait a number of years before they take such a significant step. Senator Norris and Ivana Bacik spoke about that provision at the presentation and Ms Bacik brought it to our attention most strongly.

In a small way I was involved in a labour law in about 1993 or 1994. One of its clauses stipulated that one could not be discriminated against regarding job opportunities or employment promotion on the basis of one’s sexual orientation. I remember presenting the Bill in this and the other House. I was the Minister with responsibility for labour affairs at the time. I was glad to introduce that Bill because I regarded it as my contribution, my niche, in societal development.

In my view, society has made advances in this regard. As we were informed by The Irish Times, society has changed dramatically and that newspaper has been to the forefront of change. There is no doubt about that and the House is keeping up with that pace. It may seem sometimes as if we are tardy but I do not agree. The matter must be viewed from all sides. The Minister’s speech was so thought provoking in the proper sense and gave the House so many facts that Members will be pondering them for some time.

I thank the Minister on behalf of the House. Ministers come and go; mostly they come and go very quickly but this Minister comes and stays——

  Mr. Kett: He is here all the time.

  Ms O’Rourke: We are thinking of making him an honorary Senator because he comes here so [705] often and stays for debates on his Bills. We are grateful to him for giving a commitment on this issue.

Senator Tuffy raised a point which was echoed by Senator Quinn that stable relationships are the glue in society and I agree. They may be the words used by Senator Quinn. In my view, a couple who love one another, who wish to care for one another and to continue their lives like that is a thing to be marvelled at, to be appreciated and of which to be glad. There is so much that is wrong, ugly and divisive in society that it is wonderful to find people of whatever sex — in same sex or heterosexual relationships — who have found a partner, someone who echoes their aspirations, their unsaid thoughts and can share things such as poetry, walking together, living and cooking together and doing all of the things which are lovely in a relationship and which everybody would applaud. I am only so sorry I have lost it. People who can be in a relationship which gives each partner joy and in which they can have joy unconfined with one another is such a wonderful thing. We should be offering a paean of praise to it, as this Bill does.

All these areas dealing with relationships and with the things that matter in life are being introduced incrementally. It may seem tardy but we live by our Constitution which is our charter for living. It is right and proper that the Minister should bring various matters to our attention in that regard. Senator Dardis stated his intention to call for the adjournment of the debate rather than for a vote. I concur on behalf of my party. We will not be calling for a vote on the amendment. I wish Senator Norris well tomorrow when he speaks to the committee and lays out his stall, so to speak.

In my view, this is a thoughtful Bill into which Senator Norris has put his heart, as have his colleagues, many of whom are in the Visitors Gallery. He has worked very hard on the Bill. Senator Terry made the point that Fine Gael as a party did not make a submission to the All-Party Committee on the Constitution. The former leader of Fine Gael, now the EU ambassador in Washington, made a very strong submission which was based on the family and which rejected outright any other type of relationship. I suppose many within the Fine Gael Party agree with that view. As I said this morning on the Order of Business, I appreciate the opportunity to express my views on this matter.

  Mr. Coghlan: I too wish to congratulate Senator Norris on bringing forward this Bill. Many worthy points are covered in it and these were explained in the presentation given by the Senator last week in the audio-visual room. In common with the other speakers I wish Senator Norris well tomorrow when he appears before the committee.

I was very heartened by the views of Archbishop Diarmuid Martin——

[706]   Mr. Norris: Hear, hear.

  Mr. Coghlan: ——and the Law Reform Commission’s proposals. I have had my eyes opened in this debate, like so many others and not least by the Minister. I concur with the tributes to the Minister. We have seen further tangible expression tonight and further proof of the able guardian and protector of the Constitution that he is and the fine legal brain he possesses. I was thrilled and delighted that despite the acrimony which existed in the House this morning that agreement was reached. I had a chat with Senator Norris and with the Leader of the House. I had my own simple formula but that may not have been what was used. In any event, we are all glad this debate has taken place and that there will not be a vote. I accept the need for a consideration of all the important legal and constitutional issues.

I note the Oireachtas All-Party Committee on the Constitution and the case currently before the courts. As the Minister pointed out, there is a difference between the legal advice to him and the legal advice on which the Law Reform Commission has been working. We all accept, and I am sure Senator Norris equally accepts, the provisions of Article 41 of the Constitution which describes the family as based on marriage. That is the basic, fundamental unit of society to which we all pay homage and salute. A difficulty with section 6 of the Bill has been noted. No one would do anything to infringe the constitutional protection provided for the marriage unit. On the possible discriminatory nature of section 3 of the Bill, I believe work will be done to remove that provision. I was delighted to hear the Minister state there are no great philosophical differences on this matter. All Senators need to be commended for not dividing the House.

We welcome the fact that Archbishop Diarmuid Martin has given approval to giving legal rights to couples, including homosexuals, to live in relationships other than marriage. The Taoiseach stated that extending rights to gay couples in the areas of tax and inheritance was the “fairest” and “Christian way” to deal with the issue. Dr. Martin recognised that:

....there are many different kinds of caring relationships and these often create dependencies for those involved. The State may feel in justice that the rights of people in these relationships need to be protected.

The Minister has made a similar statement and there are no differences between the two sides of the House on the issue. While the Archbishop stated he was referring primarily to caring, dependent relationships in general, as opposed to homosexual relationships, at the same time, he indicated that he did not exclude homosexual relationships. He stated he had a wide range of relationships in mind and while he did not exclude gay relationships, his main concern was “with all caring relationships where dependencies have come into being”. I share the Minister’s con[707] cern about Kerry farmers because it would be a hell of a job if they had to split the pollachán. They would need some of the Minister’s senior counsel colleagues.

It is great that everybody accepts the need to redress these matters and that Irish law already takes into account certain issues regarding non-marital relationships. It is good that the Minister placed on record that the Government is unequivocally in favour of treating gay people as fully equal citizens.

The Minister flattened poor Senator Ross in his absence.

  Mr. M. McDowell: He deserved it.

  Mr. Norris: He will rise again.

  Mr. Coghlan: I know and that is great. The Bill lacks provision as regards duties and is silent in regard to other matters.

Senator Norris’s input has been tremendous and is welcomed by all Senators. I believe he would accept that further work needs to be done on the Bill. He has the brainpower and people to do it. The Bill, in conjunction with the helpful points the Minister has made, means we will go forward. Progress has been made.

  Ms O’Rourke: On a point of order, the Minister is willing to remain in the House for a short time. I propose to change the Order of Business to extend the debate by approximately 20 minutes to accommodate several Senators who wish to speak.

  Mr. Norris: That is an indication of how seriously Senators take the debate.

  Mr. U. Burke: Is that agreed? Agreed.

  Dr. M. Hayes: Senator Hanafin will, therefore, be able to speak. I, too, congratulate Senator Norris and thank him for the trouble he has taken to bring the legislation before the House. I also thank the Leader for her diplomacy in ensuring the debate proceeded in an acceptable form, the Minister for his thoughtful and compassionate speech and Senator Kett for proposing the amendment in the manner he did.

I think of marriage as a contract in which people agree to take on certain obligations and do their best to carry them out. For some people marriage is enriched by being a sacrament, which is fine, but there is also a civil element of contract. The family is a building block which stabilises society and provides a matrix in which children can be brought up and safeguarded. However, the nature of the family has changed over the years. The family, as defined in the 1937 Constitution, represented the ideal of family at the time.

I commend a good book by a French sociologist entitled The Family in History. The family at the time of the Brehon Laws was different [708] from the current family structure. We had the extended family and nuclear family and now new arrangements have emerged in society and we must deal with them. Each of these arrangements is important and can work. The important factors are stability, solidity and certainty and that people accept their rights and responsibilities. The Constitution, as a living document, must take account of this and I am glad the All-Party Committee on the Constitution is addressing the matter.

I have two difficulties with Senator Norris’s Bill. I share his view regarding the purity of the classical etymology of the word “conjugal”. Unfortunately, the word has been vulgarised by lesser etymologists and now has a sexual overtone. It would have been preferable to find another formulation in this instance. The Senator has got himself and the Bill into trouble by importing the dreaded “M” word, marriage, into section 6. While it may be handy shorthand to state that civil partnership has the same meaning as marriage under previous legislation, it will be necessary to tease out what are the responsibilities and benefits in a civil partnership.

Although I bow to the Minister’s legal knowledge, I believe the best way to deal with the issue is as a contract matter. People could have variable contracts which could be registered. This would meet requirements and would not be in competition with marriage per se.

The important issue is that there is pressing social need. It is all very well to say there are not many people facing these circumstances but the issue is extremely important in every single case. I hope, therefore, that to the extent that the different consultations that are necessary can be influenced by the House and the Government, they will be pressed on to finality. The requirement to consult and deliberate further should not be used to put the issue on the long finger. It should be brought to a conclusion. I welcome the debate and thank Senator Norris and the Minister.

  Ms O’Meara: Like other Senators, I thank Senator Norris for introducing the Bill. I also acknowledge the actions of the Leader in listening to and reflecting the views expressed on the Order of Business, particularly on this side, and allowing the debate to proceed and even be extended. I welcome the legislation because it develops a debate recently touched on by a number of key people, including Archbishop Diarmuid Martin, to whom many Senators referred. It opens up a debate on questions such as what is the family and what is marriage.

The Minister’s speech is a useful commentary on the legislation. He asked what are the duties, responsibilities, rights, entitlements and so on of marriage. Rights and entitlements arise, as reflected in Senator Norris’s Bill, but so do the issues of duties and responsibilities.

The legislation is a landmark in extending social change. The family looks much different [709] now from how it did in the past. However, this does not mean that family units as they are now constituted are any less families than those which adhere to the traditional definition of that entity. A family may not be a nuclear family which consists of mother, father and children but may be made up of a unmarried couples with children, couples in second relationships, gay couples, couples who choose to live together and not have children, or couples who choose to be married and not have children.

7 o’clock

I acknowledge the contention of many Members that the family unit is the place in which children are nurtured and become members of society. However, partners who choose not to have children or are unable to do so are no less a family than partners who choose to have one or more children. The family unit is the cornerstone of a well-working society and it is our duty as legislators to support it. We have reached a point, however, where our laws and, if necessary, our Constitution must reflect a changing view of the concept of family and must support actual families. I include long-term same-sex relationships in this context.

The question of legal protection for the rights of cohabiting couples is important. With social change has come an acceptance that partners of the same sex have rights and should be accepted in their choice of living together. I know a couple well who have lived together for a number of years and have accumulated much property. Questions arise for couples such as this in regard to issues such as pensions and inheritance. The Minister will agree these couples have a right to be protected under the law.

However, in providing such protection, I agree with what the Minister said regarding the importance of considering the other elements we may create in law through such changes. I welcome this debate, which is part of what this House is about. Tonight’s debate will contribute to the broader debate that must take place on this issue before any legislative change takes place.

  Mr. Hanafin: I support the recent remarks of the Archbishop of Dublin, Most Reverend Diarmuid Martin, who stated:

I recognise that there are many different kinds of caring relationships and these often create dependencies for those involved. The State may feel in justice that the rights of people in these relationships must be protected. Not only would this approach be more fair, it would also make political sense. For, if significant social change is to take place, it needs to have a fairly broad measure of support across society. We should try for a consensus approach.

This Bill does not satisfy the requirements as set down by the Archbishop.

Before I go any further, I observe that the word “homophobic” has been used in reference to [710] some Government Members. I am proud of the record of this side of the House. In 1989, it was a Government comprising Fianna Fáil and the Progressive Democrats which steered through the Prohibition of Incitement to Hatred Act, which made it an offence to publish or distribute material or use words or behaviour that are threatening, abusive or insulting, and are intended or likely to stir up hatred against a group or persons on account of a number of specific grounds including sexual orientation.

  Mr. Norris: That provision was included as a consequence of my amendment.

  Mr. Hanafin: The Employment Equality Act 1998 prohibits discrimination in employment on grounds of sexual orientation. Sexual orientation is defined in this Bill as meaning heterosexual, homosexual or bisexual. The ground-breaking Equal Status Act 2000, which was also initiated by this Government, protects against discrimination outside the field of employment by prohibiting discrimination in the supply of goods and services on nine distinct grounds including sexual orientation.

It is to be regretted that the debate has diminished to the level of name-calling. It amuses me that people sometimes think that a person who takes another view does not understand the issues. I reject that and contend that we are quite clear on the issues. Marriage is an institution honoured in most societies because it benefits the State and civil society. Through the procreation of children, it provides for the future of the State. When children mature and go to work, they pay for the pensions and social welfare benefits of the present generation. Marriage is, therefore, an important institution which should be strengthened and promoted by the State. All serious studies indicate that a family in which the parents are married is the best milieu for the rearing of children.

The question I pose in regard to this Bill is probably the same as that which went through the mind of the child observing the emperor whose tailor had allegedly provided him with a beautiful suit. There was much admiration of this suit until the child pointed out that the emperor had no clothes. If this Bill applies to civil partnership every de jure and de facto meaning of civil marriage, the question arises as to why heterosexual couples should not just choose civil marriage. This issue arose during the debate in the UK and it is a question that should be addressed.

The Bill confines civil registration to conjugal relationships, which the dictionary defines as pertaining to marriage or the right of a sexual relationship. Like marriage, it also has a schedule of forbidden degrees of kindred and provides for dissolution and annulment. The message of registration and the entire proposal imitates civil marriage. Section 6 bestows on a civil partnership the same rights of marriage now enjoyed by legally married couples. Presumably, this includes tax[711] ation benefits and the right to adopt children. Apart from seeking privileges for same-sex couples and cohabiting heterosexual couples who by the Bill’s definition would have to be free to marry, the Bill excludes others living together such as a widowed mother and son or two siblings, for example.

I agree with the Minister that the Bill will prove to be unconstitutional. The proposal for civil registration as envisaged in this Bill effectively amounts to a consideration of the question of homosexual marriage. This is a question that was recently rejected in all 11 states in the United States in which it was tested, despite the influence of the liberal media. We should not accept the Bill as it stands and I second the proposed amendment.

  Dr. Mansergh: Tribute is owed to Senator Norris, not only for putting this question before us, but also for the campaigning he has done over a long number of years. The highlight of this campaign was the Bill enacted by the former Minister for Justice, Máire Geoghegan-Quinn, under the aegis of the Fianna Fáil-Labour Party coalition, on the decriminalisation of homosexuality. There is no disagreement on any side of the House that change and reform are needed. The issue relates to the question of what that change should constitute.

As the finance spokesman for Fianna Fáil in this House, I feel entitled to raise the point that there is a powerful fiscal undercurrent to this debate. There are three categories for capital acquisitions tax. Category A, which applies to straightforward family relationships such as that between child and parent, has a threshold of €456,000. The threshold is €45,000 for siblings, while for those who are not related a figure of approximately €23,000 applies. This is an important dimension to the debate.

There are many choices to be made and I am very much in sympathy with most of what the Minister said in his analysis of the issue. One must decide if only sexual relationships, whether heterosexual or homosexual, should come within the remit of civil partnership legislation or whether such provisions can apply to friends, companions or siblings. My clear preference, which is against the recommendation of the Law Reform Commission, is for a broad, inclusive and comprehensive view of relationships. It does not seem right that a cohabiting couple should be treated more favourably than siblings living under the same roof. There are divisions of opinion on this question. The fundamental question concerns marriage as understood up to now and as it is understood in the Constitution, although this is sub judice. Do we believe that the family and marriage should have some primacy over other relationships or do we feel they should be on a par?

It is somewhat disingenuous to suggest, as some speakers have done, that this has nothing to do [712] with gay marriage. Section 3 states that a civil marriage is a conjugal relationship. The Oxford dictionary states that “conjugal” means “of marriage, of the relationship between husband and wife.” Taken with section 6 we are talking to all intents and purposes about gay marriage. How should we decide whether we choose that option or something else? It is not just a matter for the courts, although the input of the courts will be important. While what the Legislature has to say will be important, it is not just a matter for the Legislature. It is so fundamentally important that it should be a matter for the people, not as a question in isolation but on foot of carefully considered legislation dealing with very complex issues.

  Mr. Lydon: This debate revolves around the family. A family is a primary social group consisting of a man and a woman living together in a long-term commitment formalised by marriage. The primary definition is usually extended to include children and then on to any group of people related by blood, heterosexual marriage or adoption. Even from a strictly evolutionary point of view, nature itself knows of only one kind of human family, namely, biological pair bonding. This fundamental definition has been endorsed by the Supreme Court, which holds that the constitutional meaning of “family” is confined to a family based on marriage.

Many scholars who have considered this issue have arrived at the same broad understating of family being a unit, cemented by marriage. The attempt to redefine the family to include various alternative lifestyles ignores the historical and sociological evidence. The natural family remains an historical and social reality, which cannot simply be altered by legislative fiat or by the adoption of current mores.

It is important to recognise that people in non-traditional household units have certain legitimate rights, which justice demands we recognise. The challenge is to do this without undermining the respect and protection for the family based on marriage, which is properly provided for in the Constitution. The key is to ensure that rights accorded to persons in non-traditional household units are not granted based on the existence of a recognised sexual relationship. Rather such rights should be based upon the fact that two or more persons form the economic and social unit of a household. Where two or more persons have formed such a household for a period of, let us say, five years, they could be granted certain tax advantages and other rights without prejudice to the special status of the family based on marriage.

The question of inheritance tax is easily and uncontroversially resolved by granting the principle that every person should be allowed to have one privileged heir who can inherit the bulk of an estate without being subject to ruinous levels of inheritance tax. In the case of a married person, his or her spouse, ipso facto, becomes that privileged heir. Other persons could be allowed to [713] nominate a privileged heir, possibly even a corporate person such as a registered charity.

The relationship of marriage deserves special protection as it forms the basis for stable families with a minimal level of dependence on the State. Many significant advantages accrue to society from the existence of such stable units. By its nature as a procreative relationship, marriage is based upon the existence of an assumed natural sexual relationship between the spouses and the law requires consummation for validity. This is where the recognition of the institution of marriage and the legal rights accorded to the family based on marriage must be unique if they are to have any meaning.

I come to the matter of homosexual or gay marriages. The definitions of marriage in all societies refer variously to marriage as a contract between a man and a woman to live together as husband and wife. Marriage is an institution older than the State and the institution of positive law, an institution that has been assumed into the sphere of the State’s concern for good reasons. There is a rationale for the existence of civil marriage, as such. This rationale is based on the fact that marriage is an institution which is fundamental to society and which it is in society’s interest to protect and nurture. This very rationale, which justifies the intrusion of the organs of the State into marriage, would be undermined by the introduction of homosexual unions analogous to marriage.

It is important to recognise that the refusal of the State to countenance marriage or civil unions between persons of the same sex does not mean that other legitimate rights of such persons cannot be granted or protected by law, as they should be. However, such rights are based on their citizenship rather than on their relationship, which it is inappropriate for the State to recognise in any way other than that they form an economic household unit.

I am disappointed in the time allowed for this debate. Having listened to Senator Norris I was particularly disappointed that he was given so little time. He could have talked for an hour on the Bill and should have been given at least half an hour. I hope he will talk further on the Bill when the debate resumes.

  Mr. Norris: Bravo. The Senator could run at Cheltenham.

  Labhrás Ó Murchú: It is daunting to make a meaningful contribution to a debate on such a complex issue in four minutes. What is important about this evening’s debate is that Senator Norris has done us a service by providing a focus for the debate. Already I can see parameters put down by two different points of view. Some might say the Senator put his head on the block. On the Order of Business this morning he might have feared that it might be knocked off. However, even if his head were knocked off, I believe he would continue to make a very good case.

[714]   Ms O’Rourke: As he rolled around.

  Labhrás Ó Murchú: I have always found the Senator to be very moderate in his views even on subjects which are very extreme. I give him credit for that and I wish we had more time for this debate. I will make a few points with a view to being helpful. It is very easy to throw around words such as “compassion”. At this time it is probably somewhat premature to do so and I am sure it can be discussed at a later stage. Many of us grew up with a very traditional outlook on life and are pretty focused in that regard. When we came across people who found themselves in the position of same-sex unions, all of a sudden it became a human issue and we took time out to consider the situation, which is very important. Legislation is one matter and humanity is another. We must always try to bear that in mind.

As my time is limited, I want to focus on same-sex unions. I would advise that people in such unions should not go into competition with marriage. While Senator Maurice Hayes put it down to an issue of contract, I feel that might be a starting point. I could never understand why gay people wanted to stand out and not integrate in their own right with everybody else in the St. Patrick’s Day parade in New York. While I do not mean to be insulting in any way, there was a certain degree of exhibitionism in that approach, which does not help the case of gay people.

If this debate is to continue we must start from the point that we have experience of the family unit. We know how that unit has stood to us in time and we know that it will be very difficult to get people in the main to change their views in that regard. In the debate, perception will be as important as reality and we should focus on the perception. If this discussion were taking place on Vincent Browne’s programme or on any other radio programme it would be a case of “God help the debate”. However, it is happening here involving people who are prepared to listen to each other’s opinions, have done research and realise that we have a long road to travel. It is important not to leave it to the media to have the debate; let us have the debate here. I wish everybody well. We all know where we are coming from. If two opposing points of view exist, I have no doubt that the bridge between them is humanity.

  Mr. J. Walsh: As I did this morning, I compliment Senator Norris on introducing this Bill. It is not often that debate on a Private Members’ Bill is extended by 20 or 25 minutes. This morning it looked like we would have no debate at all.

I have reservations about the Bill and I have spoken privately with the Senator in this regard. It raises issues which will need to be teased out over a period of time, and will need to be done in a sensitive way in the interest of the individuals who find themselves in certain situations and also in the interest of society as a whole. To some extent this represents the challenge to the [715] Government and to all of us in the Houses. On the one hand we must cater for the individual while at the same time ensuring that the well being of society is preserved.

I was struck by one of the Minister’s comments which puts down a challenge to all of us and particularly to Senator Norris. The Minister said we must decide what we are trying to achieve. In other words, are we focusing on the particular rights of importance to cohabiting couples, or are we looking to give such couples a status equivalent to marriage? That is the real kernel of the issue because a great deal of the emotion of this argument revolves around it.

I wish to discuss an issue that is not directly related to the concerns of same sex couples and heterosexual cohabiting couples. Marriage is not being supported by the State in the way it should be. At the time of the introduction of divorce, which was necessary in many instances, it was promised that support structures would be put in place to help marriages that were in difficulty or breaking down. Since then, I have encountered many instances of people who walked away from marriage subsequently having tremendous regrets when, for example, their second relationships did not work out. Not only are such people affected by marriage breakdown, but their former partners may be bitter and their children may be in an undesirable position. I do not argue that we should force people to stay together, or even attempt to do so, but we should put in place a system that helps them to protect their relationships. We should think long and hard about introducing anything that undermines the position of marriage in society. We should probably avoid such measures.

I accept that same sex couples are affected by certain issues, but I do not think those issues apply to cohabiting heterosexual couples in the same way. The option of marriage is open to the latter group. I do not think we should put in place a parallel marriage system. We do not need two different systems running in tandem. The Law Reform Commission addressed a number of the issues to which I refer, including the issue of property rights. I am aware that changes in the capital acquisitions tax code have facilitated the protection of houses, which is probably the most sensitive aspect of this issue.

  Mr. M. McDowell: The businesses.

  Mr. J. Walsh: I accept that the protection of businesses has not been addressed.

  Mr. Norris: Yes.

  Mr. J. Walsh: Other issues, such as succession rights, are well articulated in the report of the Law Reform Commission. When a person who has cohabited in a stable and loving relationship gets sick, it can happen that other people interfere and the person’s partner gets cut off. If [716] Ireland is the Christian country we like to think it is, that issue will be addressed in a proper way that takes into account the rights of such people. I do not suggest that we should be generous because giving people their rights is not a question of generosity. At the same time, we should take care not to undermine marriage.

Like other Senators, I am disappointed not to have had more time to contribute to this debate. I would have liked to speak about certain aspects of the issue of homosexuality, about which I have firm views. I am sure I will have other opportunities to do so. Senator Norris will return to this issue, which will not go away.

  Mr. Norris: Before I move the adjournment of the debate, I would like to say a few words about this excellent debate. Regardless of their views, speakers did not trivialise the matter. The Minister paid the Seanad a great compliment by spending so much time here during the debate and giving the House the benefit of his extensive legal knowledge.

  Ms O’Rourke: Hear, hear.

  Mr. Norris: I hope, between us all, we can come up with something that will resolve the difficulties we face and provide for a happier life for people in this State.

Debate adjourned.

  An Leas-Chathaoirleach: When is it proposed to sit again?

  Ms O’Rourke: At 10.30 a.m. tomorrow.