633 / 736
under this scheme, but not (at least normally)
under the religion adopted.
It also would fail to deal adequately with cer
tain mixed marriages. If a Roman Catholic, pre
viously unmarried, married a divorced person,
the marriage would be
invalid
(because
both
parties must always be legally free to marry),
although the re-marriage would have been valid
if both parties' religion permitted divorce. This
is precisely the kind of distinction which the law
should seek to avoid. This plan would prevent
Catholics who
remarried after divorce
from
legally adopting children, and would deprive the
children of such marriages of their Succession
Act rights (two serious defects in the present law).
Nor would it solve the problem of a Catholic
who is divorced after having married in a Registry
Office, and who then re-marries in church. And a
further complication would be dragged into the
already
thorny problem of recognition of the
marriages and divorces of people not domiciled
in Ireland. Certainly if divorce was to be made
available on this limited basis, the Constitution
would be an entirely inappropriate way to legis
late for it.
But the over-riding objection to this superficially
attractive and apparently liberal change is not the
technical chaos or the injustice which it would
cause, though these would be worse than under
the present law. It is from the standpoint of the
Protestant Unionist, whom the change would be
primarily designed to please, the new clause sug
gested would be as bad as, or worse, than the
present Constitution. The objection to the pres
ent constitutional prohibition on divorce in Union
ist eyes, it not merely that it denies a remedy for
matrimonial difficulties
to
those whose
con
sciences would allow them to use it. It is that the
State is using the civil law to enforce the canon
law of one Church.
Unionists dislike
the present provision on
divorce not because
they are inveterate wife-
swappers with a taste for legality, but because
they do not want to be citizens where it is regarded
as -the State's job to enforce
on anyone
the doc
trines of any Church, even that of the majority.
If the State prohibits divorce for religious reasons,
it is likely to take a view on mother-and-child
schemes, or any other issue disturbing the con
sciences of the pious, which is also based on the
173
same religion.
In a democracy it is inevitable that the religion
of the majority will colour their views on political
issues; it is not inevitable, and it is naturally un
attractive to minorities, that the religion of the
majority should automatically be the policy of the
civil law. And it is no answer to Unionists to
point out that, on questions such as Sunday obser
vance, the civil law in Northern Ireland imple
ments the
teachings of one particular form of
Christianity.
A pluralist society
involves a non-denomin
ational State. Our present society does not treat
minorities badlyj
but our Constitution and our
laws undoubtedly embody and
implement
the
teaching of one religion, not the consensus of all
our citizens. A non-denomination State (which of
course is entirely consistent with the teaching of
the Second Vatican Council) will not adopt the
principles of any religion, but will give all its free
dom compatible with the maintenance of society,
and allow them to follow their consciences as to
how they use that fredom. This is what the dis
cussion should now be about.
The Government party might use the issue in
question to stir up popular feeling against Depu
ties and Senators involved, and in a subsequent
general election obtain a majority in the Dail and
Senate out of all proportion to the proportion of
the electorate in favour of the change proposed.
In a united Ireland, former Unionists would not
feel safe, from constitutional changes unless they
were protected by more than a minority in the two
Houses (which is all that Unionists could expect
to have anyway).
If the Constitution could be amended by an
ordinary Act, judicial review, under which a court
can declare invalid an Act inconsistent with the
Constitution, would come
to an end. Various
countries have no judicial review but have con
stitutions which can be amended only by special
procedures:
it would be
impossible
to have
judicial review if the Constitution could be altered
or repealed by ordinary legislation.
A constitution which could be amended by one
Act could not itself invalidate another one. This
means that it would no longer be possible to
"entrench" fundamental rights provisions so as
to guarantee, for example, the right of personal
liberty from legislative restriction.
(The Irish Times,
24 November 1970)