The UCD Equality Society Inaugural Lecture
Dr Ann Louise Gilligan & Dr Katherine Zappone – February 2008
We would like to say how delighted we are to be asked to speak at this, your inaugural Equality Society Lecture. We understand that your society has gone from strength to strength since it was ratified only last summer.
A special word of thanks to Therese Fagan for her contact and infectious enthusiasm about equality – it is no wonder you have over 260 members already – and, of course, Judy Walsh, your course co-ordinator. Judy wrote an inciteful opinion on marriage for gay and lesbian couples for the Irish Independent during our legal case in 2006 and continues to support the campaign for equality for gay and lesbian people. More recently, in the foreward to the MarriagEquality policy position paper, she has proposed that Irish lawmakers catch up with changes in Irish society by amending legislation so that everyone in this country has the human right to marry the person they choose to love. Thank you for your leadership, Judy.
We were also delighted to hear that some of you who took the module on human rights re-enacted our case in a role play… and that this time around we won because the case was judged on the merits of equality. We are happy to say, too, that a similar judgment was made in our favour by graduate students in a law course at University College Galway – in this instance they took the role of Supreme Court Justices!
This evening we will outline our own personal journey towards the Supreme Court, weaving together narrative and rationale, story and concept, imagination and love. We will attempt to convey that our free choice to marry one another in a legally binding manner, is not only the natural expression of our life-long being in love, it is also the result of our life-long passion for a society that is just and free, for everyone.
Initially, it is worth spending a few minutes thinking about what we mean by equality and how it relates to the principles of social justice, human freedom and dignity. This will allow our subsequent conversation to be rooted in a common language and a shared understanding.
Two thinkers who have inspired us in the tradition of political philosophy are John Rawls, a liberal philosopher, and Iris Young, a radical philosopher. Taking some of the best of what both have to offer, we have developed what we call ‘an inclusive understanding of equality’ that guides much of our practice in every day life.
Within the “powerful ideal of equality” in liberal political philosophy, equality is theorised with reference to the foundational notion of the individual’s equal moral worth.
It is this claim of equal moral worth that underlies John Rawls’ conception of equality and its intrinsic connection to a society organised according to the principles of justice. However, in our inclusive understanding of equality, we suggest that we are of equal intrinsic worth by virtue of being the human we are. Our equal worth is not dependent exclusively on capacities or characteristics that we hold in common (as Rawls has argued) or, our equal worth is not simply dependent on our sameness; it is dependent also on the reality of diverse ways of being human. So, we are inherently equal to one another in and through our differences, as well as in and through the common essence we share in our humanity. Put simply, equality will only be realised when we recognise our differences.
Moving on, then, we must think about the type of society and institutions we need to embrace difference mutually, so that everyone’s human rights are respected equally. As Iris Young wrote:
‘The ordering and governing of a just society must not design institutions and laws that eliminate group difference, but instead promote equality ‘among socially and culturally differentiated groups, who mutually respect one another and affirm one another in their differences.’
From this, we can conclude:
- The practice of equality requires attention to group differences and;
- Decisions regarding the design or re-design of systems, laws and policies should be the product of political practices that acknowledge group differences and are inclusive of the different identities of individuals.
Equality, as well as another closely related concept, dignity, is also a core value of international human rights law. The Preamble to the Charter of the United Nations in 1945 and the Preamble to the Universal Declaration on Human Rights in 1948 refer to ‘the dignity and worth of the human person’ and the ‘equal rights of men and women.’ Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights recognise ‘the inherent dignity and … the equal and inalienable rights of all members of the human family’ as the foundation of freedom and justice.
Our own Constitution, Bunreacht na hEireann, upholds equality in Article 40.1 when it states: ‘All citizens shall, as human persons, be held equal before the law.’
The Constitution also refers expressly to dignity in the Preamble when it outlines that the people seek ‘to promote the common good with observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual be assured.’
This appeal to the centrality of individual liberty, or freedom – as expressed by Enlightenment thinkers such as Immanual Kant – requires that all persons be treated with respect and dignity as human beings. Each should be allowed to live the life of his or her own choosing. Amartya Sen – the great contemporary political philospher and economist – re-interprets this powerful ideal of freedom by arguing that a society characterised as ‘equal’ must provide people with economic and social freedoms ‘to lead the kind of lives we have reason to value.’ A society filled with substantive equality for all means that each one of us are free to choose the lives we wish to live. In our case – as in the case of all others whose identity resides within a sexual minority – we ought to be free to live our sexual identity with integrity, and without unwarranted interference by the majority. When we are talking about the human right to marry, in plain, common language, this translates to mean that we have the right to marry the person we choose to love, that we have a fundamental right to marry the person of our choice.
Now, we might be forgiven in believing that our Taoiseach was schooled in these central insights from political philosophy, when we heard him say, in January 2006, that:
‘All citizens, regardless of sexual orientation, stand equal in the eyes of the law. Sexual orientation cannot, and must not, be the basis for second-class citizenship. Our laws have changed, and will continue to change to reflect this principle (endorsing the All-Party Oireachtas Committee on the Constitution).’
Why then, we ask, has this principle been laid aside as the lawmakers insist on drafting a ‘civil partnership bill’ for same-sex couples that stands completely separated from the institution of marriage? Why can’t the insitution of marriage embrace different social groups, thereby equally respecting everyone’s human right to marry the person they choose to love? Should not the legal definition of marriage provide one of the greatest examples of a democratic society that is equal, just and free?
We did say we would talk to you about the journey we have taken together that has brought us to this point. A central part of that journey has been our work in West Tallaght, Co. Dublin and the courage and determination of the women and men we have met in this work – many of whom have had to live with poverty, isolation and institutionalised inequality. They have been a huge inspiration to us in our own quest for equality, freedom and fairness in civil marriage.
So where does it begin?
It was early September. The year was 1981. Boston College accepted only two people onto a Doctoral programme in Education and Theology. It just so happened that Ann Louise (from Dublin) was one of the two, and I was the other. (Would you say that we were destined to meet?!) During those first early months I had the extraordinary experience, time and again, of being loved into my best self. I believed then – as I do now – that our relationship is not only generative for our best selves, but that our committed, lifelong partnership is generative for all those we love and work with. Indeed I believe that it is generative for an Irish society that is filled with more justice, equality, and fairness than we have now.
We moved back to Ireland in 1983. For several months, we were looking for a home with land so that we could start some kind of small project for women who did not get the same chance as we had to finish their education because poverty was part of their lives. We were young and full of energy. We believed that Ireland could be a different place if only people had an equal chance for education.
I opened the paper one bright June day in 1985 and the front page of the property section contained an enchanting picture of a wooden house. I asked Ann Louise, ‘Where is Brittas?’ ‘By the sea’ was the reply. ‘No mention of any water in this advertisement’ I said. Of course the Brittas we ended up living in is the one beyond West Tallaght.
Three months later, we wrote a letter to friends and family telling them of our impending move:
‘For some time now we have dreamed of founding an educational centre. At the beginning of the summer we came upon ‘The Shanty,’ an old cedar home in Brittas, Co. Dublin. At the back of the house a previous owner built a four-car garage that we hope to convert into this centre.
Our long-term goal is to form a small community of people who are committed to the work of the centre. We hope that both the communal and educational setting will promote freedom from sexism, classism and any other kind of social inequality.
We understand this to be a spiritual as well as educational venture. We want to have a table that is open to all – for food, drink, compassion, merriment, visioning, storytelling and decision-making. This is our dream.’
The beginnings were as simple and as small as that. We were two people, with a kernel of vision, wanting to share what we had, with an abundance of hope that things could be different and more equal.
Joined by a group of very special women who formed our first management committee, and then joined by many, many other people – women and men – from diverse class and cultural backgrounds, we built an educational centre at the back of the kitchen door to our home. For 13 years, several thousand women and men from West Tallaght were educated there.
Eight years ago the organization re-located to a new multi-purpose community facility in Jobstown, West Tallaght, where over 400 adults attend courses each week, over 100 children are enrolled in early years and after school education and care programmes and where we are developing new forms of enterprise within the social and care sector. The building was named An Cosan, by the people from the community, and they often call it a ‘beacon of hope’ reminding them and ourselves of what we were and are still able to do together, 21 years on – working together to make poverty and inequality a thing of the past through education. Throughout that time, we have tried to create a model to progress radical social change.
By ‘radical’ we mean change that creates new ways of living in common, just as Iris Young outlines. It is change that establishes conditions for the freedom to imagine and to choose a meaningful life, especially for those whose options have been reduced because of inequalities in a society. Radical change is the seedbed for social and economic systems to evolve so that fairness, dignity, respect and opportunity become integral to everyday activities like getting married, making money, implementing laws and policies, raising and teaching children.
Katherine has described how, together, we have sought social change, social justice and equality with and for others. But finally, one day in April of 2001, we decided to seek justice and equality for ourselves – and for those who share our sexual identity – because enough was enough. And, because we were inspired by and took heart from the activists of Canada, Belgium, South Africa, the Netherlands – and now Spain – who had walked that path before us. That was the day that we wrote to the Equality Authority, saying that we wanted to get legal recognition of our life-partnership and that we were prepared to do whatever was required, for as long as it took.
Katherine and I had lived in an Irish society for 20 years that had laws, and still has laws, had public policies, and still has public policies that negates and diminishes who we are and our lifelong love and partnership. In deciding to take our case against the Irish state, the Attorney General and the Revenue Commissioners, I had to face the possibility that I could lawfully lose my job. Believe it or not, the current Irish equality legislation does not protect me as a lesbian woman from such an act of direct discrimination.
The reality is that we live in an Irish society where the laws and policies still treat us and those who share our sexual identity as ‘not normal’, and we live in an Irish society where our lifelong partnership of love is excluded from the definition of family and the institution of marriage, and all the subsequent rights and responsibilities that come with that.
But, we are married. That happened on an extraordinary day over four years ago in British Columbia, Canada, when we gathered both our families to witness our vows and to hear us declare our desire for life-long fidelity to each other.
It was made more extraordinary to be within a society and legal order that recognizes our normality, and celebrates our public commitment. Canada is a society that respects our human right to self-determination (that is, our human right to be ourselves), that respects our human right to equality before the law, and that respects our rights and responsibilities to be a family.
When we came back to Ireland, we simply sought the same treatment, rights and responsibilities as other adult citizens of Ireland who marry in a foreign jurisdiction, namely, that their marriage is registered and recognized. But, we were denied what others, every day of the year get, simply because of our sexual identities and because we chose to marry the person we love. It’s as simple as that. Discrimination and fundamental inequality in this country, right now, is as simple and blatant as that.
Next month, the government is going to introduce draft legislation on civil partnership for same-sex couples. Civil partnership is absolutely not civil marriage. Listening to the Minister for Justice, Brian Lenihan T.D., it is evident that whatever form this draft legislation takes, it will create a separate and unequal institution to the institution of civil marriage open to heterosexual couples.
We want to say this loud and clear: Civil partnership will not give us equality. Civil partnership – as the only option available for the legal recognition of same-sex couples – will make law that continues the discrimination. It will not be law that provides us with ‘a step towards equality’ or law that ‘provides us with the next best thing.’ It will be law that establishes a separate – and unequal – institution for second-class citizens. If we have any doubts about this, all we have to do is to cast our eyes across the water and see what has happened in the UK. As most of you know the UK passed a civil partnership act for same-sex couples in 2004, containing equal rights and responsibilities as marriage. However, when two English women who married in Canada (Wilkinson and Kitzenger) sought legal recognition of their marriage in the UK, they were denied it because the judge ruled that civil partnership is there for them, and that marriage is properly reserved for heterosexuals.
Civil partnership does not provide incremental justice, and it will exclude same-sex partners – and their children – from the protection given to the family in the Constitution. So, this continued discrimination and denial of equality not only affects adult gay and lesbian people but also their children. The 2006 Census indicates that there are conservatively over 2,000 gay and lesbian families in Ireland. Many of these are already married and many are raising children in loving homes.
Our friends, Denise Charlton and Paula Fagan, have written recently –and eloquently – about their experience as lesbian mothers of their son. They say, ‘We are two mothers doing very ordinary things. We change nappies, suffer through Barney, cut up carrots, make sure that we always have a spare bib in our handbag, just like thousands of other mothers every day. We both feel that it is the greatest gift to be a parent and to be part of a family living in Ireland. However, in the eyes of the same country we are committed to and have worked hard for, we are not a family. We are not both recognized as parents to the son we dote on. Because of this his rights to his family are not recognized either. If the government does not open the institution of civil marriage to us, it will be telling our son (and other children in gay and lesbian families) that they’re not the same as their classmates, and that their parents are lesser citizens.’ (Irish Times, February 25, 2008). Clare Courtney, the 13 year-old daughter of two other lesbian mothers, has recently said publicly, ‘we want to be able to say we have a real family; we don’t want anyone to be able to question that. We want people to see that children of lesbian parents aren’t all messed up, we are normal, we deserve the same rights as anyone else.’
Now, there are some who say that opening the institution of marriage to same-sex couples will deny the rights of the children. Clare Courtney obviously would not agree with this position. There are some who say that same-sex marriage would deny children the right to a mother and a father. The United Nations Convention on the rights of the child declares that every child has the right to know and be cared for by his or her parents (Art 7.1). And as Ursula Kilkelly, a human rights lawyer points out, ‘the Convention does not define a parent in either social or biological terms [that is, does not insist that parent means the biological parent], and more significantly, perhaps, that Article 2 outlaws discrimination against children on the basis of their parents’ status or activities.’ While it may be the case that – in the circumstances of adoption or artificial human reproduction – that the child has a right to his or her identity (that is, to information on his or her biological parents) this is a separate issue from whether or not same-sex couples ought to be able to exercise the human right to marry. The essence of marriage in the 21st is not centred on ‘procreation’ – as some within the Catholic Church still wish to argue. Instead, marriage as a changing institution through time, is now acknowledged as a secular, state-sanctioned, legally recognized, permanent and exclusive union between two equal individuals who love each other.
So, our message to our legislators is: the only way to provide equal rights for same-sex couples – and their families – is through recognizing their right to marry, not by developing legislation where the ideology of “separate but unequal” reigns.
After all, the Government’s own Colley Report on partnership options concluded that the only way to provide full equality for lesbian and gay couples was through civil marriage. So what’s the big problem, you may ask?
It’s the issue of Constitutionality. We believe, however, that the constitutional definitions of family and marriage encompass same-sex partnerships.
This belief is shared by those developing an exciting new initiative called ‘MarriagEquality’ which was launched on February 18th. Prior to the launch, research was carried out with Lansdowne Market Research. Their in-depth focus group work found exactly as we had suspected from anecdotal evidence. Irish people are ready for civil marriage for gay and lesbian couples. Beyond this, when the inequalities are explained, they simply don’t accept that the institution of civil partnership – as a lesser institution – is a fair option for same-sex partners. This is not just wishful thinking. This is fact!
We are living in a New Ireland, freed from the mind clamps imposed by moral teachings filled with prejudice and hate.
There is a quote I would like to share with you. It comes from a book called Homosexuality in Renaissance England, written by Alan Bray in 1982:
‘Our fears are made in our own image. When … the feared object is homosexuality, there is a mirror in which we can see reflected the society that rejects it; in the terms used, in the outline of what is being feared, lie the pre-occupations and ways of thought of that society. And the greater the force of its rejection, the more naively it reveals itself.’
When the mirror is held up to Irish society today, it does not reflect back the fear it would have in the past. As a married couple, we can personally share that we have received nothing but affirmation from young, middle aged and elderly, in both rural and urban Ireland. In our professional work and in our voluntary engagements, we have never met anything but gracious acceptance of the choices we have made.
From research and our personal experience it is therefore inaccurate for the Government to state that Ireland is not ready for change. It is not, in our opinion, a correct reading of the signs of the times.
Returning to Rawls’ principle of the equal moral worth of all human beings, there can be no valid ethical, intellectual, legal or spiritual argument to interpret the Constitution in a way that settles for less than equality for some of the citizens of this land. There can be no sound moral arguments to treat some citizens as second-class citizens. All of us in this room know that the arguments for “separate but equal” never worked in any other civil rights movement throughout the world. All of us know, for example, that in the case of South Africa, and we are proud to say that we like many other Irish citizens fought hard against apartheid, that to settle for separate but equal schools for black and white children, separate but equal territories where whites and blacks could live, meant nothing else but blatant inequality. The same is true here in Ireland. The truth travels – and does not change when it is applied in Ireland, and applied to people with differing sexual identities, any more than when it is applied to people who are black and white in South Africa. We want to be able to say, with Nelson Mandela, ‘that we can loudly proclaim from the rooftops – free at last!”
We therefore chose hope not fear, in the same way that we started An Cosán because of a hope for a more equal and free society. Our hope now is that Irish heterosexual women and men will share the territory of ‘normality’ with us and others like us. Our hope is that Irish children who share our sexual identity will be free to be themselves. Our hope is that some day we will experience justice for ourselves in this state, in this society.