Same-sex marriage in Ireland and the purpose of the law

In the latest edition of Studies, Patrick O’Riordan SJ, who teaches political philosophy at Heythrop College in London, writes about impending (inevitable?) same-sex marriage legislation in Ireland and the purpose of the law.

The narrative for same-sex marriage goes something like this:

– Same-sex relationships used not to have society’s approval; now, increasingly, they do. This represents significant social progress.

– The law should be changed to reflect society’s approval and to affirm the right and legitimacy of such relationships

– This should include the right of same-sex couples to marry

– Change in the law will bring equality of treatment to same-sex couples. Current law discriminates unfairly against them.

Marriage in this sense is located in the realm of individual rights. Change in the law will bring into being a new social institution of same-sex marriage, declared to be legally equivalent to heterosexual marriage. To do this in Ireland will require a change to the 1937 Constitution which has a major place for marriage as a union between a man and woman.

O’Riordan notes how this narrative raises some significant questions around the purpose of the law and the institution of marriage:

‘What interest does a liberal democratic state have in the private relations of its citizens?’ ‘Is the legal concept of marriage necessary?’

He traces the arguments that some have made (he names Baroness Hale of Richmond, a judge in London’s new Supreme Court) that marriage as a legal institution has no real unique value. In England, there are no distinct legal consequences of marriage that are not already covered elsewhere. Children are equally protected under the law whether of married or non-married parents. Marital status is effectively irrelevant with regard to taxation and welfare provision – it could just as easily be co-habitation or civil-partnership. With the drive to equality, the distinctiveness of marriage as a legal category is undermined.

This means, in effect, that the state has no special investment in marriage. These developments reflect a minimalist view of the functions of a liberal democratic state.

Ireland’s Constitution is most definitely not minimalist. Our debates are going to be around those who see it as the role of the state to invest in and promote marriage by law for the good of society (current Constitution) and those arguing for a minimalist role of the state in redefining marriage around equality and personal liberty.

The Church’s Response

Where O’Riordan gets really interesting is in his advice to the Catholic Bishops. The self-understanding of the Irish RC Church has been forged in a profoundly Christendom context (my comment) – and this has led to the Church understanding itself as a guardian of political and social values. Such assumptions are no longer credible in post-Christendom Ireland.

But why, he asks, should the Church take a position on two competing views of the function of the law? Both have strengths and weaknesses. Both have ‘unobjectionable social values as a basis for legislation’ . Yes, the debate will be a lively one, but he urges the Bishops not to campaign beyond highlighting the values at stake.

Another reason not to campaign is that they will almost certainly lose. Arguing for the abstract notion of the social value of marriage over against a narrative of equality, overcoming discrimination, the right to marry for those in love of whatever gender, a better more inclusive Ireland … well you get the picture.  It’s a no win.

O’Riordan argues that once understood that the debate is effectively about the appropriate role of the law in a liberal democracy, rather than the nature of marriage or moral truth, then the Church is best to keep its powder dry for other occasions and higher priorities. Fighting a whole series of losing battles in the public forum over the last few decades has had a deeply demoralising impact.

If the bishops were to take on a losing fight, they would compromise their capacity to perform their essential mission – to preach the Gospel …. No-one is encouraged in faith, hope and love by preachers and teachers who are anxious, demoralised or depressed. In another sense, the core message of the faith has been drowned out by a predominance of moralising in the Church’s communication. There has been too little of the joyful proclamation of the presence of the Risen Lord and of his Spirit in the midst of our messy and broken world.

What the Catholic Church needs to recognise, is the new context in which it exists. Christian marriage will not cease to exist – the sky will not fall in if (when) same-sex marriage happens in Ireland. But rather than rely on the state or law to uphold it, the challenge is for the Church ‘to engage in more direct and deliberate preparation of couples for their giving and receiving of the sacrament [of marriage].’

What words would you use to describe this article? Here are some that come to my mind:

Refreshing – focused on the essential mission of the church to preach the gospel

Realistic – discerning the (post-Christendom) times and an appropriate strategy. Not trying to live in the past.  What he says sounds positively anabaptist in his call for the church to be the church whatever wider society is doing to marriage.

Wise – informed, engaged, and most impressively of all, self-critically reflective (all too rare)

Constructive – not fearful or scare-mongering. Able to isolate the underlying issue of changing attitudes around the purpose of the law. Not demonising opponents. Showing how different Christian responses to same-sex marriage legislation does not necessarily equate to diluting or compromising a traditional orthodox Christian view of marriage.

Incomplete – a key issue down the line will be that of religious liberty. If marriage is redefined under law, how will that legislation protect the right of Christians (and other religious faiths) who will resist the practice of same-sex marriage within their faith traditions? At the moment there is clear blue water between marriage and secular civil partnerships performed by a state registrar. A change in the law will need to be carefully crafted if equality legislation does not end up trumping religious liberty. Christians will rightly resist the state over-reaching its power to force the church by law to act against conscience and established teaching.

Comments, as ever, welcome.