Roderic O’Gorman made a somewhat extraordinary intervention in the Dáil this week, when he felt it necessary to promise the house, and by extension the public, that the referendums scheduled for March 8th would not end up granting throuples – romantic relationships where there are three partners – and other polygamous (multi-partner) relationships the same constitutional status as marriage. Here’s the Minister:
Minister O'Gorman tells the Dáil 'throuples' and polygamy will not be classified as durable relationships and will not be covered under the expanded concept of the family which will be voted on in the referendum.
There was also confusion between 'throuples' and 'truffles'… 👀 pic.twitter.com/G8YivXqbqp
— Christina Finn (@christinafinn8) January 17, 2024
Now, the first thing to say is in defence of the Minister is this: Traditionally, constitutional lawyers place some weight on what they call “legislative intent” when interpreting the constitution. That is to say, when the Supreme Court comes to decide what the words in the constitution actually mean, one of the things it will look at is what those who enacted those words into the constitution intended them to mean. In this case, future legal scholars making arguments to the Supreme Court will have something to point to: A cabinet Minister making a very clear statement that it is not his intention that the changes to the constitution would be intended to pave the way for constitutional recognition of polygamous relationships. Any court operating fairly would have to take that into serious consideration.
So, his words are not meaningless, entirely.
What they are, unfortunately, is inaccurate.
The first thing that the Minister says in justifying his claim is that “polygamous relationships have never been recognised under Irish law”. This is true, but it is true because there has never been any constitutional question as to whether a Government might be forced to recognise such relationships under Irish law.
A precedent worth thinking about here is the “X” case. When the abortion referendum of 1983 was inserted into the constitution, the very clear intent both of those who advocated it, and those who drafted it, was that it should ban abortions except where there was a serious threat to the life of the mother. There was no intended exemption to that in the case of mental health, until the Supreme Court ruled in the X case that a reasonably clear possibility that a woman might commit suicide constituted a serious threat to her life, and that as such abortions should be permitted in those circumstances. In that case, the court took the words “serious threat to life” and applied them in the way a reasonable person might understand them: If there is a chance this woman might die, then she should be entitled to an abortion.
In other words, the Court took the words in the constitution and used them to force the Irish Government to do something that it had probably not intended to do, and certainly, at the time, did not want to do.
The question, then, is whether a future court might look at the definition of “family based on marriage or other durable relationships” and decide that “other durable relationships” include polygamous relationships, on which a family is based. It is not hard to see how such an argument could be made, or how a future court might sustain it, notwithstanding Roderic O’Gorman’s intent. The Irish Supreme Court has ignored legislative intent in the past.
Such an argument is easy enough to make, and a decent lawyer could make it in their sleep: The Irish state recognises the family. This group of three adults in a long term relationship considers themselves a family, and they have a durable relationship. Therefore, they deserve the same constitutional protection as any other family.
Just about the only legal argument that would remain to rebut that, based on the wording of the referendum, is that Roderic O’Gorman said that the Government did not intend for this to be the case.
Crucially, O’Gorman misses a point: He is arguing that there would be no constitutional mandate on the Government to recognise throuples and other such relationships. What he misses is that the changes he proposes would arguably remove any constitutional mandate against such recognition.
At the moment, the state recognises the family based on marriage. Since polygamous marriage is not permitted, unmarried people may not be recognised (constitutionally) as a family. That is straightforward. But when you add the words “other durable relationships” this barrier is lifted.
These, presumably, are amongst the reasons that no less a legal authority than former Attorney General and Minister for Justice Michael McDowell openly disagrees with O’Gorman on the meaning of his own referendum:
“The term “durable relationships” is not defined and is not required to be defined “by law”. Such relationships will be as decided by the judiciary in case law. Clearly these relationships can be between unmarried persons but could be between persons who are parties to different marriages or to none. But the relationships must be durable. “Durable” means capable of lasting but is not necessarily the same thing as “enduring” or permanent as the Supreme Court has already found.”
The second thing O’Gorman says is even more bizarre: “A polygamous relationship is not one that represents a fundamental unit of society, and it is not one that represents a moral institution in Irish law, and it is not one that represents as durable”.
First, O’Gorman’s opinion as to what “represents as durable” is just that: His personal opinion. The referendum wording offers no definition of the word “durable”, and deciding what it means will be entirely up to the courts. As to his words about “fundamental unit of society”, well, the problem there is that this is not what the courts will be asked to decide.
The referendum does not define “moral institutions” or “fundamental units of society”. It specifically defines “family”. The question which might be asked is not whether a polygamous relationship is moral or fundamentally a unit: But whether such a relationship can be considered a family.
As I said at the beginning, it would be wrong to pretend that the Minister’s words have no significance and carry no weight. But at the same time, it would be absolutely a case of misinformation to pretend that his words are the end of the matter.
As we have seen, at least one very eminent and prominent legal expert disagrees with the Minister. All it will take is for a couple more prominent and legal experts – Supreme Court Judges, for example – to disagree with him, and his words will be worth less than nothing.
Which is why this is absolutely an issue voters should consider on March 8th.