The Irish Human Rights and Equality Commission has issued its Policy Statement on Access to Civil Marriage, in advance of the Marriage Equality referendum this May. The Commission labelled the issue as one of equality and human rights, which puts it under the Commission’s mandate. After analysis, the Commission found that under current law and policy in Ireland, same-sex couples do not enjoy full participation in social and cultural life, and that their family rights are limited by exclusion from civil marriage.
In establishing its position on the matter the Commission looked at Irish law and policy and the Irish Constitution, and it analysed emerging international human rights and equality standards. The paper states that in light of the position of the family based on marriage under the Irish Constitution, the Constitution currently does not provide full recognition of the equal right to family life for same-sex couples. The Government’s proposal to hold a referendum on marriage equality is an important step in the protection of family life for same-sex couples.
The Commission highlighted the case-law relating to interpretation of equality from comparative jurisdictions. It also looked at evolving human rights jurisprudence from the European Court of Human Rights. Although there is not currently a consensus within the Council of Europe, the Commission expressed that a consensus was emerging in favour of marriage equality and if that happens a Constitutional referendum would be necessary.
In the opinion of the Commission, civil marriage is a key part of an individual’s and a family’s participation in social and cultural life. By same-sex couples being disallowed in participating in such an important part of life and culture, Irish law fails to provide full recognition and equality of status to same-sex couples. Opening civil marriage would guarantee wider equality in Irish social and cultural life.
The statement from IHREC was warmly welcomed by many organisations in support of the Marriage Equality Referendum including Irish Council for Civil Liberties, GLEN and Marriage Equality who issued a joint statement. However, opponents of the referendum proposal challenged the position taken by the Commission, arguing that there is a lack of international consensus on the right to marriage. They cited the ECtHR decision of Hamalainen v Finland in which the Court stated that the Convention does not impose an obligation to grant access to marriage to same-sex couples.