Social policy perspective and personally
I have chosen the equality /equity perspective as this is an area that interests me both from a social policy perspective and personally as an Irish citizen affected by this soon to be legislated unequal oppressive treatment of a minority. The example I use here portrays how the Irish state legitimates discrimination by excluding homosexuals from the right to marry and benefit from the rights and entitlements afforded to those that can. In effect it legitimises an unequal second class citizenship for same sex couples. I've not highlighted non married heterosexuals in the remit of this discourse as marriage is a choice they have if they so desire but they to will also be offered their own Civil Partnership Bill.
What I intend to do in this piece of work is highlight the inequalities that will exist when this continuously delayed legislation, the Civil Partnership Bill 2009 is enacted in full or piecemeal. I will base my arguments on a best case scenario and outcome for the current proposals. The best case scenario for this legislation is that all current proposals in the document are agreed to in the Dail and Seanad and then finalised. Again this legislation is actually enacted some of the current proposals may in fact be curtailed and thus less benefits and rights may be offered. In regard to the Policy in Practice section and Policy Context sections I will highlight a compare and contrast to current marriage entitlements and where relevant give examples of how a similar Bill operates in the UK since 2005.
In assessing this piece of proposed legislation I intend to highlight how it actively creates a second class citizenship by withholding rights and entitlements as well as informing Irish society that gay relationships are less important than heterosexual unions. I will show examples of how other recent acts and legislation or just ignorance have been formulated in order to specifically oppress this group in our society.
Equality is something that is often discussed in the Dail and various governmental departments but one doesn't need to dig to deep to discover how minorities, travellers, refugees, youth, homosexuals and the poor among other groups are treated unequally. Discrimination is legislated in the Twenty-seventh Amendment of the Constitution Act, 2004 [Irish citizenship of children of non-national parents] where the majority of the public voted for this on racial grounds. The HSE recently admitted that segregating young foreign immigrants into hostels/homes and not following up on several of their disappearances was racist as it wouldn't be tolerated if they were Irish children. The 2002 trespassing legislation has been used to criminalise travellers and Roma. Ireland is “marked by one of the most unequal distributions of wealth in Europe” (Baker, 2006). We now has a huge youth unemployment among our under 25's, interestingly a group who the government recently cut their Jobseekers allowance to under half in most circumstances thus facilitating their emigration or poverty status if they choose to stay in Ireland. The Equality Authority recently had its budget cut in half while the current government bails out unethical banks. The Civil Partnership Bill 2009 and its effect on a particular marginalised oppressed group will be discussed below. I will outline what this bill fails to deliver compared to marriage as it is that which creates the inequality towards this minority. The governments own commissioned Colley Report 2006 recommended that full civil marriage entitlement would only ensure equality for same-sex couples.
Methods of Data Collection
In researching this topic I discovered it to be virtually nonexistent as a basis for discussion in current Irish social policy texts. Equality was discussed as a discourse but little has been written about this minority and their subjection by the State. This is considering that the first Civil Union Bill was proposed back in 2006. This position meant I had to mostly rely on governmental publications and data research from online media, various Irish organisations as well as UK research to construct my findings. The governmental research one must remember is compiled by the majority political party (Fianna Fail) currently in power. They have actively scuppered the original Labour Party Bill as proposed which offered full legal marriage entitlement and equality to homosexual partnerships. They have also delayed the implementation of this bill as they had originally promised on several occasions over the last few years. The minority party in government with them the Green Party were also in favour of full civil marriage entitlement for homosexuals until they became part of this government in 2007 and now are following the Fianna Fail stance of offering limited entitlements through the upcoming Civil Partnership Bill. They say they still support full marriage entitlement for same sex partners but now they are in government this isn't a priority for them.
I've had to read through the Civil Partnership Bill 2009 which in itself is a huge document of over a hundred pages long. This I have had to compare and contrast with the Civil Registrations Act 2004 in order to explain the failing of the Civil Partnership 2009 Bill. Even David Quinn on behalf of the Catholic run Iona Institute would agree that marriage is declining rapidly in this country so one might ask why not offer it to loving couples with or without children. That is where he and his agency get heterosexist and one could argue homophobic in their many statements preaching against same sex partnerships and homosexuality in general, . Senator Ronan Mullen, also of the Iona Institute and others in the Fianna Fail party and Catholic Church have sought what they call a “Conscience Clause” to allow those that don't want to undertake a Civil Partnership to do so. This is like how the Equal Status Act 2000 and section 37 of the Employment Equality Act 2004 actually allow primary and secondary schools that are managed by religious (most in this country) legally discriminate against employing homosexual teachers with their ethos being the basis for this oppression. Students can be also excluded for being gay or not of the same religion as the school. In response to the demand for the “Conscience Clause” stipulation, Dermot Ahern said, ‘‘there is no basis for providing a right to discriminate against a class of persons on the grounds of freedom of religion or conscience." Interestingly the Iona Institute on the day I accessed it pointed out several failures in social services & (http://www.ionainstitute.ie/index.php?id=512) with children but nowhere on their website could I find references to the responsibility taken by the Catholic Church to the abuse of children by clergy. The Catholic Bishops of Ireland released a document called Marriage Matters on March 10th which states “Same-sex relationships by their very nature cannot be considered equal or almost equal to marriage” (http://www.catholicbishops.ie/images/stories/cco_publications/Marriage_Matters/why_marriage_matters.pdf).
Bishop Christopher Jones, of Elphin stated that they might consider taking a constitutional challenge to the Bill. Interesting scenario considering one must remember that a civil partnership is not marriage and paradoxically marriage is not limited to man and woman in our Constitution. The Bishops as a group in the Marriage Matters document said that the Bill was “an extraordinary and far-reaching attack on freedom of conscience and the free practices of religion - which are guaranteed to every citizen under the Constitution”. Bishop Jones who is the Chairman of the Bishops' Committee for Family and Children, said “We are really very concerned that the Civil Partnership Bill is going to undermine marriage by conferring all the rights on same-sex unions as marriage, equating same-sex union to marriage itself” yet the Bill very definitely separates the rights and entitlements of marriage from same sex partners as I've outlined in this paper. This as previously stated was challenged by Dermot Ahern the Minister for Justice, Equality and Law Reform. In challenging the “Conscience Clause” further in a Dail debate on Jaunary 21st he said, “We should not give sanction effectively to homophobia for conscientious reasons.” Ironically the Equal Status Act 2000 and Equality Act 2004 and Section 2 of the Civil Registrations Act 2004 already give sanction as will the Civil Partnership Bill 2009.
There is no evidence to suggest that the UK Civil Union Bill 2005 undermined marriage there. In reading the Bill I couldn't find anywhere the union of two monogamous lovers that undermines or attacks an organised religion. Interestingly in a different context Bishop Jones argues how this legislation will deny children their protective rights. Ironically the document does deny them as it doesn't address the children's rights which are already missing in contemporary established same sex parental unions. The outcomes will be very interesting considering the government's attempts at some secularisation while the Church attempts to wield some of its still immense power over its members and political allies. Hateful comments by these bishops and Cardinal Daly encourage intolerance and isolation. This legislation that denies same sex marriage, “demeans their capacity to love, it demeans their relationships, and it demeans the families they raise according to Human Rights Theorist Ronald Dworkin . He suggests that offering full civil marriage instead of a Civil Partnership would remove much of the stigma faced with being homosexual.
With the emergence of industrial society familial relationships outside the hierarchal Christian “reigning models” are subjugated to a societal non acceptance. A worldview exists consciously or subconsciously advocated by the majoritarian heterosexist view personified through its values skewed by the power of a politically male Catholic power structure. Examples of this include, ‘heterosexist bias, overt censorship, destruction of lost traditions and lost voices' (Adam, 2001). These couples want to form recognised unions in order to defend their right to achieve social inclusion and equality on a par to that offered to heterosexuals. As demonstrated by various Acts I've referenced here including the Civil Partnership Bill there is a clear and obvious heterosexist bias towards implementation of Social Policy designed to protect the nuclear family. This also discriminates against lone parents.
Homosexuality is hidden in society. It is acceptable as long as it's not displayed too publically. Gay romance, courtship and affection are rarely witnessed in public or in the media and this is the preferred societal discourse. We celebrate heterosexuality daily in many facets of our lives and through the media. The state definition of the ‘family' continues in use today as a tool to deny homosexuals and other minorities equality. By not being entitled to marry same sex couples lack many benefits that those that can marry are entitled to and take for granted. A very few countries worldwide do offer Same-Sex marriage but this is often diluted into a far less than equal civil union status or Civil Partnership in this case. Hospitals and schools are often run by religious orders and reinforce “heterosexist terror”. Several social scientists reinforce a homophobic genre according to Adam (2001) through their heterosexist and religious belief.
It's not just homosexuals that deviate from the Christian/State patriarchal definition of the family. Many of those in heterosexual relationships today choose to live outside these institutionalised expectations. It's ironic that social science texts, religious orders and the state preach today about the ‘decline of the family' while homosexuals are refused entry to marriage. They are not and will not be recognised in this Bill as a family legally or socially. This vocal emergence is about equality, having the right to fully participate in our society. Adams (2001) argues that heterosexual society and its stance on family ideology affords the “realms of romance, courtship, marriage and family to heterosexuality”. This Bill by denying the equality of marriage to same sex partners by actively discriminating personifies his belief. Homosexuality like other spheres of life is dismissed to existing only in a ‘sexual' context. This achieves the continuance of oppressing homosexuals in western society today. What I've learned from my research and must ask ourselves is it acceptable for the State to fund the Catholic Church to educate our children and run our hospitals while the leaders of this church openly preach hatred against homosexuals? It is wrong that the State does not challenge this doctrine of homophobia and how can it can preach a discourse about implementing equality for its citizens while it actively creates discriminating oppressive legislation such as the Equal Status Act 2000 and Equality Act 2004 and Section 2 of the Civil Registrations Act 2004 which makes it illegal for a same sex couple to marry in Ireland. This Civil Partnership Bill is a continuance of this enacted legislation which ensures an unequal society and a second class citizenship for this oppressed minority.
The Policy Context
In researching this topic I was unfortunate in that the implementation of the Civil Partnership Bill 2009 was delayed continuously on numerous occasions right up until this essays submission due date. This left me with a scenario where I've had to work from the proposed legislation based on the Heads of this Bill. The heads of this Hydra in its best case scenario can only offer a level of civil partnership which isn't marriage thus reinforcing inequality for this societal minority and their lived experience. It was only in 1993 that homosexuality between consenting males was legalised in Ireland and the then government (Fianna Fail) only facilitated this because Senator David Norris had taken them to the European Court of Human Rights in 1988 and won under Article 8 (right to privacy in the home) of this constitution which Ireland had signed up to. Consensual sex between females was never criminalised in Ireland. Interestingly it still took five years from the court ruling before the state decriminalised sex between consenting males aged seventeen and above.
According to Article 40.1 of the Irish Constitution “All citizens shall, as human persons, be held equal before the law”. Ironic when you consider that this same document is being used as a legal crux to bar same sex marriage to protect the family as defined through heterosexual marriage it is claimed. Even more interesting is that nowhere in this document does it state that marriage should be confined to heterosexual couplings yet this is what anti-equality advocates in the current government are saying. In fairness poor Eamon de Velera who formulated this document in 1937 according to his strict Catholic beliefs must be doing cartwheels in his grave. Article 41 of the Irish Constitution outlines that a family is recognised only on the basis of parental marriage. This obviously discriminates against many new families such as lone parents, widowed, divorced and those children currently in the families of gay partnered or single households.
Heterosexism dictates that there is an ignorance towards the needs and requirements of those that exist outside this paradigm. According to Thompson (2006) it reflects the dominant worldview that heterosexuality is the standard by which all should be measured. It is an assumed norm and those outside its sphere are seen as inferior and deviant.
Policy analysis / Lit review
The Civil Partnership Bill was published for the Dail and Seanad to consider in June 2009. The Bill is 118 pages long with over 200 separate sections. It was initially planned that the bill be tabled in Autumn 2009 and enacted by that December but that didn't happen. Thus the predicament that this research essay is based on proposed legislation. According to Dr. Fergus Ryan (2009), the Head of the Law Department at DIT “couples who are not married to each other have minimal rights, privileges and obligations” under current Irish legislation. As the law stands without a will succession rights don't exist if a partner dies. Inheritance taxes will be levied. There is no recourse for financial maintenance if a relationship break up occurs. Property rights are limited. A partner is not recognised as a next of kin. On a positive note these positions will change to benefit a partner with entitlement when the bill is enacted. Pension entitlements and legal protection against domestic violence will be bestowed on the couple. Walsh and Ryan, The Rights of De Facto Couples, (Dublin: IHRC, 2006) “point out that such discrimination infringes the European Convention on Human Rights - while the law may distinguish between married and unmarried couples, it cannot treat unmarried opposite-sex couples differently from unmarried same-sex couples”.
Though similar in several ways to protections offered by marriage it does discriminate against offering all its entitlements. For example it will not address the current adoption laws in this country that allow one homosexual to adopt whereas a gay couple cannot yet a married couple can. On enactment of the civil partnership a non biological partner will not have rights or entitlements over the health and welfare of the other partners biological children. Even if they are brought up in that family home. Same sex partners as now will be allowed foster children under section 10 of the 1991 Child Care Act and its later amendments. One of my fears as a future social worker is that this bill shows little regard for children of these partners. In theory the courts could ignore or even prejudice children in these families (Dr. Fergus Ryan, 2009). This relationship might be dissolved with scant regard for the children. Whereas if a marriage ends in divorce will only be sanctioned after financial, emotional, physical and other provisions are made for the children under the Family Law (Divorce) Act 1996. There is also no allowance made for the non-biological parent to have any rights to see the child after the dissolution of a civil partnership unlike with the ending of a marriage. They can seek visitation rights but will not be entitled to custody. This also subjugates the child's best interests financially as they have no entitlement to the non-biological partners means for their upkeep. All of this serves to disrupt the governmental policy of sustaining the best interests of the child as outlined under the Guardianship of Infants Act 1964 and the 1989 United Nations Convention on the Rights of the Child. In this context the Irish State shows an ironic stance in not using this as an opportunity to embrace the rights of a child by offering them a stable environment in which to live in. Children should have an entitlement to know that their parental relationship is stable and recognised in law. Otherwise an inequality of second class citizenship will prevail.
The Department of Justice, Equality and Law Reform has outlined that it is to pass on the same scenario as currently experienced by spousal partners in taxation and social welfare. Tax credits would be shared with a partner but social welfare entitlements would reflect a partner cohabiting. This would also entitle a partner to the transference of a widows/widowers pension. Succession rights through inheritance would now prevent Capital Acquisitions Tax. Capital Gains Tax and Stamp Duty would no longer apply to property transferral.
There is very little said about the rights and entitlements regarding a civil partner immigrating from outside the European Union but the Minister for Justice, Equality and Law Reform has said these will be on a par with other spousal relationships. Once the Immigration, Residence and Protection Bill of 2008 is enacted then the Oireachtas will make provision for it in the Civil Partnership Bill. Same sex marriages, civil unions and partnerships from abroad will be recognised but limited to the rights and entitlements of the Irish Civil Partnership Bill 2009. Rights to citizenship are not improved like those offered to current spouses of Irish citizens. Non-EU nationals must pay a €150 fee under section 9 of the Immigration Act 2004 to register at Gardai stations but the spouses of Irish citizens and those that are widowed by Irish citizens are not required to pay.
The bill also discriminates in that there are two sections. One for unmarried cohabitating civil partners who don't need to register and another for same sex couples who must to have their relationship recognised.
Nowhere in the bill to it refer or recognise the partnership with or without children as a family unit except regarding employee law and equality legislation. This may be in reference to the constitutional definition as is being currently debated but it is as much to do with religious influence and interference from the likes of The Iona Institute who appear to take an unhealthy interest in same sex relationships. Either way it must be seen as an insult to same sex relationships and their constructed families. Marriage Matters and kijoijoijij are two groups that advocate full marriage entitlement and recognition of the family unit. Marriage privilege as defined under the Criminal Evidence Act 1992 will not be offered to spousal partners in a civil partnership.
The rules around dissolution of the civil partnership differ to those of marriage. For a divorce as defined in a recent constitutional amendment a couple must be living apart for four out of the five previous years. In the case of the ending of a civil partnership as defined in the bill the couple must be living apart for two of the three years since their relationship ended. There is no allowance or requirement for mediation in the breakdown of a civil partnership unlike in a divorce. Judicial separation as would be offered in marriage is not offered as an option under this bill. The UK also left this out of their 2006 Bill.
You can't choose your sexuality just like you can't choose your skin colour so discriminating on the grounds of sexual orientation equates to race based discrimination. Amnesty International see the denial of same sex marriage as denial of a human right (http://www.amnesty.ie/amnesty/live/irish/news-events/article.asp?id=33927&page=2156). The right to marry is enshrined in the Article 16 of the Universal Declaration of Human Rights and Article 23 of the International Covenant on Civil and Political Rights.