As the title implies: a short collection of questions that arise from the 2015 Irish Marriage Referendum and which would flow from its possible passing.

1. 1
Constitutional and Marital Law Questions re: Marriage Referendum
1. How is the proposed amendment intellectually compatible with the legal expectations of
consummation and marital exclusivity?
a. If everyone is on an equal legal footing and if consummation still has the legal significance of validating a
marriage (save for circumstances where it’s not possible for exceptional reasons):
i. Could any natural and/or corporate person, including a future Government, legitimately see a
marriage of two people within the same sex as being in a state of permanent incompletion and
in practical terms hypothetical (i.e. impossible for it to ever be validated by consummation) and,
therefore, effectively legally ignorable? Comparisons to a man and a woman who can’t
consummate a marriage are invalid for the same reason that comparing a woman who can’t
have a child to a man who can’t have a child is invalid: the former is exceptional, the latter is
universal.
ii. If such an argument were held to be legally sound, would legislative action making adoption,
ART, etc. only open to a married man and woman (who can legally validate their marriage
through consummation unless exceptional circumstances apply) be legally sound?
b. Alternatively, if the effect of removing sexual distinction from marriage is that consummation is no
longer required, so that sexual intercourse could no longer be presumed to occur within a marriage,
what would be the basis of the legal expectation of marital exclusivity?
i. How could a marriage be adulterated if it didn’t have to be consummated and if sexual
intercourse could then no longer be presumed to occur? Why would having sex with someone
else be a problem if having sex is irrelevant to marriage?
ii. Additionally, how could a marriage be adulterated if the assumption of genetic integrity can no
longer apply universally? If sexual distinction doesn’t apply, would the presumption of the family
as an intact genetic union [with exceptions for adopted children] become too conditional to
remain the dominant legal presumption?
iii. If sexual intercourse can no longer be presumed to occur within a marriage and if the family is
no longer presumed to be an intact genetic union, would the presumption of paternity naturally
disappear? What would a man married to a woman have to do to prove he’s the father?
2. How is the proposed amendment intellectually compatible with the constitutional status of the
Family and Marriage?
a. More broadly, what would the status of the Family in constitutional law be should this referendum
pass? Would it still be the same as it is now and, if so, how would the proposed amendment be
compatible with that? For example:
i. Does Article 41. 1. 1o
, describing the Family as being “antecedent and superior to all positive
law”, imply, or more clearly state, that the Family is a pre-political teleological reality and
therefore beyond the scope of constitutional reinterpretation? If so, what implications would
that have for the proposed amendment given that Marriage and the Family are interlinked in

2. 2
Article 41. 3. 1 o
, which links back to Article 41. 1. 1o
? If not, where exactly does the
constitutional value of the Family come from if it’s “antecedent and superior to all positive law”?
ii. Similarly, if Marriage is instrumental to the Family, and the Family is prior to the State, is it
unreasonable to argue that Marriage is therefore also prior to the State and thus also beyond
the scope of constitutional reinterpretation? If the proposed amendment passed, could it still be
challenged on constitutional grounds?
iii. If, as Article 41. 1. 1o
declares, the Family is the “fundamental unit group of society”, does that
imply that it is necessarily unitive, i.e. that it originates from a unitive relationship and whose
founders thus, biologically speaking, can only be sexually distinct?
iv. If this referendum were to pass would it be the case that one clause of the Constitution
effectively says ‘This is what the Family is now’ and another clause effectively says ‘The Family is
an unchangeable institution of Nature’? Would there be a requirement for an additional
constitutional amendment, or set of amendments, to clarify the situation?
b. Additionally, would Article 41. 2. 1o
and Article 41. 2. 2o
imply that the sexual distinction of Marriage and
Family life still pertains even if this referendum were to pass? How would that be intellectually
reconcilable?
i. Would two women who are legally married and legally recognized as the mothers of one or
more children be entitled to the protection of Article 41. 2. 2o
? Would they both be protected
from being “obliged by economic necessity to engage in labour to the neglect of their duties in
the home?”
ii. If the above were so, would that be unjustly discriminatory towards two men who are legally
married and legally recognized as the fathers of one or more children?
iii. Or would Article 41. 2. 2o
only apply to a married man and woman? Would that be seen as
discriminatory? Would Article 41. 2. 2o
(and perhaps 41. 2. 1o
too) then have to be amended or
deleted?
iv. What would happen to Article 41. 2. 2o
if changes were made to parental naming i.e. ‘Mothers’
and ‘Fathers’ being removed in line with the proposed removal of ‘husbands’ and ‘wives’ from
the statute books? If Marriage is constitutionally linked to founding a family in Article 41. 3. 1 o
,
and if it loses sexual distinction, how could sexually distinct naming still apply to the Family?
Would Article 41. 2. 2o
have to be amended or deleted if ‘Mothers’ no longer existed legally?
By Thomas Byrne