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McDowell's bombast, bluster & guff cannot disguise denial of equality

Issued : Wednesday 21 February, 2007

We are used, on this side of the House, to knee-jerk opposition from Ministers to our legislative proposals. But, coming from a man who prides himself in his reputation as an intellect, with a fine legal brain and deep familiarity with the Constitution, the Minister's descent last night into the depths of shallow humbug, bluster and guff was truly an embarrassment. It was an embarrassment to his party and its founders, to his colleagues in the Law Library and to all of us who take our politics seriously.

His performance last night was a shameful, shallow, rowdy, incoherent, arrogant and bombastic farce.

And, given that he is not a stupid man, one could only be driven to the conclusion, if parliamentary decorum permitted one to arrive at the logical conclusion, that his performance last night was deliberately deceitful. That it was calculated to mislead the House, the visitors in the gallery with a special interest in this issue and the wider general public.

The Minister masked his refusal to accept this Bill - even in terms of its broad general principles - by reference to the Constitution and the law. On nearly every point he made, he was entirely wrong. And I repeat that I do not believe his inaccuracies are due to ignorance. There is something more malevolent at work. There is a patronising attempt at empathy and there is mock concern. But at the heart of it there is a refusal to tackle this issue. And that refusal is based on reasons that are manufactured for the purpose and which have no basis at all in reality.

The Minister made three specific points to which there are three specific and complete rebuttals. First, he claimed that our Bill attempted to pre-empt the Supreme Court decision in the appeal in the Zappone case.

For those who don't know, that case is about whether the Constitution and the law, as they at present stand - and I emphasise "at present" - require the recognition in this State of a same sex marriage celebrated a few years ago in Canada. The Minister says -

"If the Supreme Court is to uphold the High Court and rule that it would be unconstitutional to recognise foreign marriages in this way, section 5 of this Bill would fall flat on its face".

But the High Court did not rule that it would be unconstitutional to give any form of recognition or status in our law to foreign same sex marriages. There was no argument at all in the Zappone case about whether the Constitution prohibits recognition of foreign same sex marriages. The only argument, which was quite predictably lost, was whether the Constitution already requires such recognition, before any law is passed on the issue.

And our Bill, of course, is concerned with what the law will be after it is passed and has no impact whatsoever on the issues to be decided in the Zappone case.

Every first year law student knows that. The Minister must know it also. But, when he cannot win an argument on logic and the facts, he resorts to underhand tactics.

Second, the Minister criticises the Bill for what it does not do. He says it does not address the position of cohabitants. When it was pointed out to him that this is a quite separate issue, he replied -

"It is not a separate issue. It is the same issue. It is the same issue, namely, there are people in our society who are not in a position to enter into a marriage, for one reason or another, but who want to have legal recognition for the attributes of mutual dependency which arise out of their relationship."

He then says: "the Government wants to deliver a framework in which all non-married couples, including gay couples, can live in a supportive and a secure legal environment".

That statement betrays the Minister's complete unawareness of the issues involved here. Cohabitation relationships between heterosexual couples involve people who could marry but choose not to do so. What is at issue here is the status of people who want to do more than cohabit but who are prevented from marrying.

If the Minister cannot yet see and appreciate that point, then he has been talking and listening to no-one. His approach is to bundle together same sex couples - who are not married because they cannot marry - with those couples for whom cohabitation is a matter of lifestyle choice. His approach is ignorant, patronising and blinkered.

Third, the Minister's amendment notes that the Bill "appears" to be unconstitutional. It does not say why and the Minister in his speech did not provide much detail. He did suggest that it might breach the State's obligation to guard with special care the institution of marriage on which the family is founded and to protect it against attack.

Presumably the Minister is not arguing that those of a homosexual orientation should reconcile themselves to the married state? Or that offering civil union for same sex couples would lure heterosexuals away from marriage? If he is not saying that, on what conceivable basis is he arguing that making specific provision for same sex couples has any effect whatsoever of an institution that is at present confined to couples of opposite sexes?

Finally, and absurdly, our Bill is mocked for being too short. According to this big, swinging Minister, we're trying to do in 10 sections something that required 264 sections in the UK. The argument is absurd because it ignores the fact that precisely the same outcome was achieved in a Vermont statute with seven sections and a Canadian statute that had 15.

Of course last year the Minister himself introduced a Bill with just 38 sections but, such is his unhealthy fascination with statute size that, by the time he was finished with it he had added a further 159 and four schedules.

To return to what this debate should be about. The purpose of a second stage debate is to elucidate the general principles of a Bill. The Bill before the House tonight contains within it one single over-riding principle - the principle of equality.

The principle of equality is at once simple, and unsettling; often unwelcomed, yet ultimately unquenchable and undeniable. The principle of equality is founded on the bond of our common humanity. It is based on our recognition in each other of an essential shared human experience. Our shared humanity is far greater than any difference in how we look, how we pray, what our capabilities are, or how we choose a partner in life

The Nobel Laureate Amartya Sen has written that every ethical system put forward for the organisation of society, contains within it a notion of equality. It could not be otherwise. To deny equality, is to look another in the eye, and proclaim them to be a lesser person. It is to deny the bond of our common humanity.

The Civil Unions Bill 2007 is about equality. It offers same sex couples the greatest measure of equality possible under our constitution. It affords same sex couples access to a status relationship which is similar to marriage in every practical way. It will provide thousands of our fellow citizens with a vital legal protection, and bring to an end countless forms of discrimination that they encounter in their daily lives.

This bill gives this legislature the opportunity to fulfil its constitutional role: to legislate. Too often in the past, this body has dodged difficult decisions. Too often we have left issues unaddressed, or left the courts too pick up after our undone work. Too often, it has been left to courageous individuals to ask the courts for justice, which ought to have been afforded them by this body.

Tonight we have an opportunity to do the work that the Irish people sent us here to do. The Government wants to postpone. It wants to put off. It wants to defer. There is no requirement for delay. There is nothing that this House can do in six months time that it cannot do in the next six weeks, or in whatever number of days remains to this Dáil. If the Bill requires amendment, amend it. There is plenty of time for constructive engagement at committee stage and ample time to pass all stages of the bill before the House is dissolved.

Do not smile and pretend your deep concern about equality. Do not believe that photo-opportunities and expressions of concern are a substitute for how you vote on this bill. Act instead. Do not pretend, as the Minister pretends, that the Bill is somehow flawed. It is not. Vote for this bill, and afford it the priority it deserves.

As Dr King said on that famous day, when he proclaimed his dream of equality, he had come to remind us of 'the fierce urgency of now'. He said: 'This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism'

This is not a matter than can be lightly deferred. This is a matter of justice and equality that affects the daily lives of thousands of people. People who live in committed relationships, but are denied the simple rights that married couples take for granted.

To delay is not to compromise. To delay is to add, not subtract, from the inequality in our society. To delay is to look our fellow citizens in the eye and dismiss the common bond of humanity.

Equality is the principle that has always inspired and driven the Labour movement. We proudly trace our origins, not just to Connolly and Larkin, but before them to the great thinkers of the enlightenment, and to the inspiring call for liberty, equality and fraternity. We have carried that ideal forward in a long line of progressive legislation, in which this Bill takes its place.

We are not the only party to be so inspired. There are others in this House who claim to trace their political lineage to enlightenment values. Those who annually March to Bodenstown to celebrate Tone have the opportunity tonight to live up to the values that inspired him. Those who claim to stand by the Republic, in the original and true sense in which that term was used, have the opportunity to live up to their liberal values. To the notion that: "We hold these truths to be self-evident, that all men are created equal".

I commend this Bill to the House