The spring issue of Studies, out recently, takes ‘Changing Ireland’ as its theme. Top billing goes to Patrick Riordan SJ’s provocative article on the drive to legalise same-sex marriage in Ireland. The core issue here, he argues, is not the nature of marriage or moral truth but the nature and function of law.
According to Dr Riordan, the governing spirit of Ireland’s legal structures is distinct from that of many other liberal democratic states. Rather than merely legislating in support of such values as personal freedom, equality, non-discrimination, and property rights, Ireland’s constitution determined from the start to protect and promote a broad vision of society. “The vision at stake,” he writes, “was not minimalist; on the contrary, it was expansive and inclusive, considering the interplay of domestic, social and political institutions, and sought to safeguard that complex interdependence.”
There are problems with such a holistic vision, Dr Riordan notes. It is a stable and rarely changing legal vision, but it fails to provide the tools needed to respond to new threats to the rights and liberties, and to the demands of equal treatment and freedom from discrimination, of citizens. It is “illusory”, he argues, “to pretend that these two purposes of the law can be easily combined.”
The call for same-sex marriage legislation, Dr Riordan argues, relies on an understanding of law’s function in relation to society. The issue is not, he emphasises, “a fight about the nature of marriage or moral truth. It is a contest about the law and the purposes which the law should or could pursue.” He acknowledges that the Church has “legitimate and totally appropriate moral and social concerns” on this issue, but he insists that these “may be pursued in other debates and other fora”.
Should the Church leaders in Ireland take sides in the upcoming debate? Dr Riordan thinks not. “At the most,” he remarks, “they might confine themselves to a statement of concern about the values at stake and a call to responsibility.” Whatever the outcome, he says, “the human, social reality of marriage as a permanent and exclusive relationship between a man and a woman, open to the generation and rearing of children, will persist, but not as a legal or empirical norm.” We may no longer be able to suppose that the public use of the word ‘marriage’ certainly refers to a transcendent, sacramental reality, and perhaps for this reason “it would be wise to rely on the distinctive term ‘matrimony’ to refer to sacramental marriage”.
Other articles in this issue of Studies include Peter Sutherland on ‘The Constitution, the Courts, and the Legislature’, Finola Kennedy on ‘Policy Ideas and Commissions of Enquiry’, and John Bruton on ‘The Challenges facing Economics in Ireland’. To purchase a copy of Studies, contact The Editor (Bruce Bradley SJ), 35 Lower Leeson Street, Dublin 2, or email [email protected]