Thirty-fourth Amendment of the Constitution of Ireland


The Thirty-fourth Amendment of the Constitution Act 2015 amended the Constitution of Ireland to permit marriage to be contracted by two persons without distinction as to their sex. Prior to the enactment, the Constitution was assumed to contain an implicit prohibition on same-sex marriage in the Republic of Ireland. It was approved at a referendum on 22 May 2015 by 62% of voters on a turnout of 61%. This was the first time that a state legalised same-sex marriage through a popular vote. Two legal challenges regarding the conduct of the referendum were dismissed on 30 July by the Court of Appeal, and the bill was signed into law by the President of Ireland on 29 August. An amendment to the Marriage Act 2015 provided for marriages permitted by the new constititional status. The act came into force on 16 November 2015; the first same-sex marriage ceremony was held on 17 November 2015.

Changes to the text

The amendment inserted a new section 4 to Article 41 of the Constitution. The English text reads:
The Irish text reads:
The text in Irish and English is intended to have the same meaning; in the event of a conflict, the Irish version takes precedence.

Original Irish wording

The Irish text of the amendment as introduced was:
Journalist Bruce Arnold argued against the bill in two articles in The Irish Times, one of which focused on alleged issues with the Irish text. Arnold argued that the Irish text describes only same-sex couples, thus rendering opposite-sex marriage illegal. Government sources pointed out the words impugned by Arnold are already used with similar intent elsewhere in the constitution. Counterpoints from legal academics were that Arnold's strict constructionist interpretation would be trumped by the doctrine of absurdity, and that failure to mention opposite-sex marriage would not make it illegal. Some argued that the Irish text should nevertheless be changed to remove all doubts. Enda Kenny announced on 10 March 2015 that such a change would be made. Frances Fitzgerald moved the amendment in the Dáil the following day.

Background

and Ann Louise Gilligan lost a case in the High Court in 2006 for the recognition by Ireland of their Canadian same-sex marriage. The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 instituted civil partnership in Irish law. After the 2011 general election, the Fine Gael and Labour parties formed a coalition government, whose programme included the establishment of a Constitutional Convention to examine potential changes on specified issues, including "Provision for the legalisation of same-sex marriage". The Convention considered the issue in May 2013 and voted to recommend that the state should be required, rather than merely permitted, to allow for same-sex marriage. Its report was formally submitted in July and the government formally responded in December, when Taoiseach Enda Kenny said a referendum would be held "no later than mid-2015". All amendments to the Irish constitution must be approved by the people in a referendum before becoming law.
Some legal academics claimed that extending marriage to same-sex couples did not require a constitutional amendment and could have been accomplished by an ordinary Act of the Oireachtas. Then-minister Shatter disagreed in November 2013, stating that there was "ample case law" to the effect that "marriage is understood as being between one man and one woman".
In January 2015, the wording of the proposed amendment was agreed at a special cabinet meeting and published in the press, and the bill was formally introduced in the Dáil by the Minister for Justice and Equality, Frances Fitzgerald.
A separate Children and Family Relationships Act 2015 was passed in April 2015. This included adoption rights for same-sex couples - prior to the passing of the Act, single gay or lesbian people, or one of the partners in a same-sex couple could adopt, but joint adoption by both partners was not possible. The general scheme of this bill was published for consultation in January 2014, and in 2015 it was passed by the Dáil on 12 March and the Seanad on 30 March, and signed into law on 6 April. the legislation has only partially been commenced.

Referendum

Two referendums were held on 22 May 2015, on the marriage bill and another constitutional amendment, to reduce the age of candidacy for the presidency. Referendums need a simple majority of the votes cast to pass. A Dáil by-election in Carlow–Kilkenny was held on the same day.
According to the Referendum Commission, if the referendum is passed:

Oireachtas debate

The Thirty-fourth Amendment of the Constitution Bill 2015 was debated in the Dáil on 10 and 11 March 2015. Several deputies from different parties spoke in favour. The only speaker to oppose it was independent TD Mattie McGrath; it was passed without a division. It was then debated in the Seanad on 25 and 27 March. Votes were held on a number of proposed amendments, all of which were defeated, and the Bill was finally passed by 29 votes to three. Among those speaking in favour was Katherine Zappone, who was a Senator at the time. Those who voted against were Senators Rónán Mullen, Jim Walsh and Feargal Quinn; the opposition amendments were also supported by Senator Fidelma Healy Eames.

Organisations

Political parties

All four main parties in the Dáil supported the bill: the governing Fine Gael and Labour, and the opposition Fianna Fáil and Sinn Féin. Members of the Green Party, Anti-Austerity Alliance, People Before Profit Alliance, Workers' Party of Ireland and independents are also on record in support of the amendment. "Yes Equality" was an umbrella campaign by Gay and Lesbian Equality Network, the Irish Council for Civil Liberties and Marriage Equality.

Religious bodies

Religious bodies in Ireland officially adopted stances that were either neutral or opposed to the referendum. The Irish Catholic Bishops' Conference is opposed to same-sex marriage, and has distributed a booklet to all parishes. In February 2015, the Methodist Church in Ireland issued a statement supporting the traditional view of marriage as being between a man and woman. In April 2015, a cross-denominational group issued a leaflet urging a No vote. Two bishops, and ministers and lay members of the Methodist, Presbyterian various Pentecostal churches signed and distributed the leaflet. On 22 April 2015, the leaders of the Presbyterian Church in Ireland issued a statement advocating a no vote, saying "the change proposed in the same-sex marriage referendum denies the rights of children and the natural responsibilities of a father and a mother in nurturing them". The Iona Institute, a mainly-Catholic religious think tank, also opposed the amendment.
However, in February 2015, the Church of Ireland announced that it was not taking a stance on the referendum, but was urging its members to vote according to their conscience. Two Church of Ireland bishops called for a Yes vote. As early as May 2014, the Church of Ireland Bishop of Cork, Dr Paul Colton had signalled his support for a yes vote. Similarly, the Islamic Centre in Ireland issued a statement on 17 April stating that "As Muslims we must believe in equality and inclusiveness. People should not be discriminated for any reason. It is important to humanise people and not to de humanise. The Islamic tradition teaches to hate the sin but not the sinner. The attitude of some Muslims towards homosexuals is incompatible with the spirit of mercy and kindness in Islam. The Irish constitution guarantees all Irish citizens the freedom of conscience and Muslims must exercise this right when voting on 22nd May 2015."
A petition initiated by a number of religious groups including the Islamic Cultural Centre of Ireland, the Irish Council of Imams, and the Galway branch of the Reformed Presbyterian Church on 15 April called for a "conscience clause", which would allow individuals and businesses to discriminate against same-sex couples in the provision of goods and services. In response, Taoiseach Enda Kenny said: "The Government has made its decision very clear here in respect to the question that the people will be asked on the 22nd of May. That question of course is to give their approval, if they see fit and I hope they do, to allow for marriage in civil law irrespective of sexual orientation." Brendan Howlin said "The one issue at the core of this referendum is equality under the Constitution and anything else is extraneous."
However, some religious-affiliated groups were in favour of the referendum. In January 2015, the Church of Ireland LGBT group Changing Attitude Ireland welcomed the publication of the wording of the Marriage Equality Referendum. Dr Richard O’Leary, the organisation's chair, said that marriage should be "available to couples without distinction as to their sex", just as civil marriage "may be contracted by two persons without distinction as to their race or religion". On 7 May, at a Changing Attitude Ireland event, former Archdeacon of Dublin, Gordon Linney said "We are being given an opportunity on May 22 finally to show the gay community that we value them for who they are. We welcome them as they are fully into society and so give them the recognition they are entitled to and that those who are in stable relationships and wish to marry should be allowed to do so. Marriage is a civil contract. No church will be forced to solemnise any union it does not approve of."

Business opinion

Many business groups advocated for the passing of the referendum. On 16 April, Business for Yes Equality launched, with high-profile companies such as Twitter, eBay, PayPal and 150 Irish-based international and local companies joining. Stephen McIntyre, MD of Twitter in Ireland, said "As I see it, this case has three key elements. First, people perform better in the long run when they can be themselves. Second, talent is attracted to organisations which demonstrate an appreciation for diversity, inclusiveness and equality. Finally, Ireland’s international reputation as a good place to do business will be enhanced by a Yes vote." Martin Shanahan, the head of IDA Ireland, the Industrial Development Authority, called for a Yes vote on 1 May, saying "A Yes vote on May 22 would tell the business world that Ireland is open, inclusive and welcomes diversity and that would be a very positive message to be sending internationally." He also said he believed that a No vote would send a negative signal to international businesses.
Also on 1 May, the Irish Congress of Trade Unions announced its support for the Yes campaign with the launch of its "Trade unions for civil marriage equality" campaign. Other trade unions and staff representative associations supporting a Yes vote included the Garda Representative Association, Mandate, and Ireland's largest trade union SIPTU.
On 7 May, eBay CEO John Donahoe announced that the company was backing a Yes vote. Donahoe said that its position on equality issues such as same-sex marriage, in addition to being "the right thing to do", also helps the company attract, retain and develop the right people.

Other organisations

Other prominent groups to support the referendum included a coalition of Ireland's main children's charities called "BeLonG To Yes". Constituent organisations include the ISPCC, Barnardo's, Foróige, Youth Work Ireland, the Migrant Rights Centre, Headstrong, Yes Equality, the Children's Rights Alliance, Pavee Point, EPIC and the National Youth Council of Ireland. Speaking at the launch, Fergus Finlay said they had come together to call for a Yes vote in part because groups within the No campaign were "using children as pawns" and that every time he saw a poster calling for a No vote because "every child deserves a mother and father", he saw "a sickening insult to the thousands of lone parents and children who love and care for each other in Ireland. The message is exploitative, hurtful and dishonest. What every child deserves is love, respect, safety. That can come from two parents of either sex, two parents of the same-sex, or a single parent." The Union of Students in Ireland, then led by Laura Harmon, launched its "Students for Marriage Equality" campaign in January together with its dedicated website, .
Amnesty International launched their "Let's Make History" campaign for marriage equality on 22 March 2015 to thousands of people outside the historic General Post Office, Dublin. Speakers included Colm O'Gorman, Pat Carey, Sabina Brennan, Gavin Brennan and Grace Dyas.
On 5 May, the "Yes for Health" campaign was launched by Liam Doran, general secretary of the Irish Nurses and Midwives Organisation and Kieran Ryan, CEO of the Irish College of General Practitioners. Speaking at the launch, Minister for Health Leo Varadkar said that a No vote would be a "big step backwards" for the country, and that it would have an adverse effect on the mental health of members of the LGBT community. The following day, the National Women's Council of Ireland and launched their 'Yes' campaign. The launch was attended by representatives of various groups, including the Irish Feminist Network, Digi Women and the Association of Childcare Professionals. On 7 May, the Law Society of Ireland announced its support for a Yes vote. Ken Murphy, the society's Director General, said that the society was taking a public stance because marriage equality was an issue of fundamental human rights. The decision followed a report from the society's human rights committee, which found that there were 160 ways in which civil partnership, compared to civil marriage, was the lesser of the two unions.
Some groups were also formed in opposition to the referendum. On 18 April, Mothers and Fathers Matter, formed in 2014 to oppose the Children and Family Relationships Bill, launched its No campaign. First Families First, a group of three people headed by children's and disabilities campaigner Kathy Sinnott, and fathers rights campaigner John Waters launched its campaign for a No vote on 1 May. On 7 May, a group called StandUp4Marriage launched. Its founder, Senator Jim Walsh said the launch was sparsely attended because people who want to vote no are afraid to speak out. Mandate for Marriage was established in March 2015. It advocated a no vote.

Oversight bodies

The following organisations registered as "approved bodies" to monitor postal voting and vote counting: Comhar Críostaí, Marriage Equality, Yes Equality Cork, Green Party, Mothers & Fathers Matter, Fianna Fáil, Labour Party, BeLonG to Youth Services, Irish Council for Civil Liberties, GLEN Campaign for Marriage, National LGBT Federation, Sinn Féin, and Fine Gael.

Broadcasting

Broadcasters are legally required to cover referendum campaigns in a balanced manner. Several complaints were made to the Broadcasting Authority of Ireland that programmes and presenters had unfairly favoured the Yes side. The BAI rejected these in its October 2015 report.

Opinion polls

Result

Counting began at 09:00 IST on 23 May. Early tallies quickly began to indicate a victory for the Yes campaign, with Minister of State Aodhán Ó Ríordáin declaring a "landslide" victory across Dublin only 8 minutes into counting. Key figures in the No campaign, including David Quinn began conceding defeat as early as 10:00, long ahead of any constituencies declaring their final count.
Urban regions generally recorded higher approval ratings for the change. The highest Yes percentages were recorded in the Dublin Region with the all of the top ten by Yes vote percentage being in the region, and all of the top 15 located in the Greater Dublin Area. Cork's urban constituencies also ranked above the national average, as did Limerick city. Although the Donegal constituencies had been expected to return a No vote, — and indeed, of all constituencies reporting a majority Yes vote, the lowest margin was recorded in Donegal South-West where a Yes vote was carried by a margin of only 33 votes — Roscommon–South Leitrim was the only constituency to return a majority No vote.

National result

The national results were as follows:

Constituency results

Reactions

Domestic

, where the result of referendum was officially announced, was opened to the public for the duration of the count, with numbers limited to 2,000 at any one time. A carnival atmosphere prevailed all day after early count tallies indicated that the result would be a Yes. Celebrations and street parties took place at many venues in cities around Ireland, with Dublin celebrations centred between gay venues Pantibar and The George, and Dublin Castle.
Taoiseach Enda Kenny said "With today's Yes vote we have disclosed who we are – a generous, compassionate, bold and joyful people. The referendum was about inclusiveness and equality, about love and commitment being enshrined in the constitution. The people have spoken. They have said yes. Ireland – thank you."
Tánaiste Joan Burton described Ireland as a "rainbow nation" and said "In Ireland, we are known as a nation of storytellers and today, the people have told quite some story. Together, the people of Ireland have struck a massive blow against discrimination as we extend the right of marriage to all our citizens." Leo Varadkar, Minister for Health and Ireland's first openly gay cabinet minister, said "It is a historic day for Ireland. We are the first country in the world to enshrine marriage equality in our constitution and to do it through popular mandate. That makes us a beacon of equality and liberty to the rest of the world, so it's a very proud day for the Irish people."
Micheál Martin, Fianna Fáil leader and Leader of the Opposition, who supported the amendment, said "there is something in the DNA of Irish people that reacts to inequality", adding "It is something that Irish people do not accept historically and I believe this ballot is a vote in favour of a more inclusive, equal and just society." However, Senator Averil Power resigned from Fianna Fáil after the referendum, alleging that many of its TDs and Senators had refused to canvass or leaflet for a Yes vote, and that its low profile in the Yes campaign was "cynical and cowardly".
The leader of Sinn Féin, Gerry Adams, said "We have a new era of equality and that is a good day for Ireland."
Veteran gay and civil rights campaigner, Senator David Norris, who was one of the key figures in having homosexuality decriminalised, said "I think it's wonderful. It's a little bit late for me. As I said the other day, I’ve spent so much time pushing the boat out that I forgot to jump on and now it's out beyond the harbour on the high seas, but it's very nice to look at."
Katherine Zappone, the first openly lesbian member of the Oireachtas, proposed remarrying her wife on air.
Diarmuid Martin, the Roman Catholic Archbishop of Dublin told RTÉ that the church needed a "reality check." He said "I appreciate how gay and lesbian men and women feel on this day. That they feel this is something that is enriching the way they live. I think it is a social revolution." He added "I ask myself, most of these young people who voted yes are products of our Catholic school system for 12 years. I'm saying there's a big challenge there to see how we get across the message of the Church".
The Church of Ireland issued a statement indicating that it "defines marriage as between a man and a woman, and the result of this referendum does not alter this." The Archbishops and bishops also called for "a spirit of public generosity, both from those for whom the result of the referendum represents triumph, and from those for whom it signifies disaster".
The Presbyterian Church in Ireland said it was "deeply disappointed and saddened that the Constitution will no longer reflect the historic – and Christian – view of marriage that it is exclusively between one man and one woman."

International

Under the Referendum Act 1994, the returning officer issued a provisional certificate of the referendum result to the Master of the High Court and published a notice in Iris Oifigiúil, the official gazette. Citizens have seven days in which to lodge a petition challenging the result. If no petition is upheld, the provisional certificate is certified as final by the Master of the High Court and the bill is sent to the President of Ireland to be signed into law, thereby amending the constitution. Two petitions against the marriage referendum were rejected in the High Court in June and the Court of Appeal in July, after which the bill was signed by President Michael D. Higgins on 29 August 2015.

Petitions

The provisional referendum certificate was issued on 25 May 2015 and published the following day in Iris Oifigiúil. Two separate petitions challenging the certificate were lodged within the time limit and considered in the High Court on 5 June 2015. The petitioners, Gerry Walshe and Maurice J. Lyons, were lay litigants. Walsh argued that political parties receiving state funding should have been prohibited from campaigning; that copies of the amendment should have been available at post offices; and that the secrecy of the ballot was compromised by serial numbers on ballot papers and CCTV cameras in some polling stations. Lyons argued that the amendment is too vaguely worded and incompatible with the constitution's Christian ethos and reference to "woman... in the home"; and also that non-voters should have been counted as no-voters. Nicholas Kearns, President of the High Court, dismissed both applications and awarded costs against the petitioners. Walshe and Lyons appealed the decisions, and on 29 June the Court of Appeal scheduled hearings for 30 July. On 30 July the court upheld the dismissals and the costs awards against both petitioners. The remaining steps were as prescribed by the Referendum Act 1994: on 24 August the High Court's Master formally notified the referendum returning officer Ríona Ní Fhlanghaile that it had not accepted any petition; on 28 August Ní Fhlanghaile sent the final referendum certificate to the Taoiseach and President; on 29 August the President signing the amendment into law.
Meanwhile, on 27 August, both Walshe and Lyons applied to the Supreme Court to overturn the Court of Appeal decision, although neither sought a stay on the Master or returning officer's actions, and their applications did not prevent the bill being signed into law. On 16 September, the Supreme Court refused leave to appeal, stating neither applicant had raised any points of substance. The Supreme Court criticised the decision to finalise the referendum certificate before it had made its decision; however, the High Court on 23 September rejected a claim by Walshe that the certificate was therefore invalid. The President's office and the Department of the Environment also stated they had acted in accordance with the law. The Master of the High Court said the problem arose because the Referendum Act 1994 did not take account of the Court of Appeal, created in 2014 under the Thirty-third Amendment of the Constitution. Lecturer Conor O'Mahony suggested the Master, though not obliged to wait for a Supreme Court appeal, might better have chosen to do so. The Supreme Court suggested that the applicants' failure to request a stay on the Court of Appeal decision pending request for a Supreme Court Appeal was a consequence of their being lay litigants, and that a professional lawyer would not have made such an omission.

Implementation

In March 2015, the Department of Justice published the general scheme of the Marriage Bill 2015, setting out the changes to be made to marriage law if the proposed amendment was enacted. These include removing the current legislative bar on same-sex couples marrying, allowing foreign same-sex marriages to be registered in Ireland as marriages rather than as civil partnerships, and dissolving a civil partnership if the partners marry each other. Authorised solemnisers of marriage from religious groups would be allowed to refuse to officiate at same-sex ceremonies. Lawyer Benedict Ó Floinn felt the bill's drafting should have been completed before the referendum, to minimise the lacuna during which statute law is out of step with the constitution. The Gender Recognition Act 2015 requires a transgender person to be unmarried to recognise a change of legal sex; the Marriage Bill intends to remove this restriction.
The government hoped to have the Marriage Bill enacted before the Oireachtas' summer adjournment, but the referendum petition hearings in the Court of Appeal delayed this. The government intended to enact the Marriage Bill "as early as possible" after the Dáil's resumption on 22 September 2015. The bill provides that applications for civil partnership pending when it comes into force can be converted into applications for marriage. The Minister for Justice stated that marriages under this provision should take place by November. The bill was approved at a cabinet meeting on 16 September for publication the following day. It passed its final stage in the legislature on 22 October 2015 and was signed into law on 29 October 2015 by the Presidential Commission.
The Marriage Act 2015 came into force on 16 November 2015. The first same-sex marriage ceremony was the next day in Clonmel, County Tipperary.

Other same-sex marriage referendums