Last month saw a potentially very significant ruling by the Supreme Court on adoption, Nottinghamshire County Council v B, but in the course of the ruling Justice Donal O’Donnell gave a justification for the Constitutional position on marriage which is well worth noting. Most importantly, his justification puts children at the centre of marriage, not adults. 

In his judgement, Justice Donal O’Donnell had the following to say about the constitutional provisions that refer to marriage and the family: 

“On the contrary, the Articles at least in general terms, state propositions that are by no means eccentric, uniquely Irish or necessarily outdated: there is a working assumption that a family with married parents is believed to have been shown by experience to be a desirable location for the upbringing of children; that as such the family created by marriage is an essential unit in society; that accordingly, marriage and family based upon it is to be supported by the State. Consequently the State’s position is one which does not seek to pre-empt the family but rather seeks to supplement its position so that the State will only interfere when a family is not functioning and providing the benefits to its members (and thus the benefits to society) which the Constitution contemplates. In that case, the State may be entitled to intervene in discharge of its own duty under the Constitution and to protect the rights of the individuals involved.”

Notably, Justice O’Donnell is pointing out that, contrary to the suggestions of many people that the Constitution’s defence of the married family is somehow out of touch with modernity “there is nothing “eccentric, uniquely Irish or necessarily outdated” about its stance.

Instead, he notes that it is based on the evidence-based idea that marriage as a social institution benefits children, and that because of this, it deserves State protection. He doesn’t refer to adults at all in his discussion of marriage. Adults are not the reason why the State gives marriage special support which is what some people today seem to think. In fact, if marriage is redefined as a chiefly adult-centred institution rather than a chiefly child-centred one, then it’s hard to see why it should receive special support at all.

Crucially Justice O’Donnell also notes that the Constitution acknowledges the family as an institution which predates the State, and that as such it does not require the State to legitimate it. Instead, the Constitution mandates the State to “only interfere when a family is not functioning and providing the benefits to its members (and thus the benefits to society) which the Constitution contemplates.”

The “working assumption” that marriage is best for kids has been demonstrated repeatedly by social science data over the last four decades. Far from this stance being “outdated”, the Constitution has been shown, in this regard at least, to be very farsighted.

The ruling itself was concerned primarily with adoption and said, in essence, that the Constitution doesn’t erect an insuperable barrier to the adoption of marital children as many people had previously thought.

This will have some implications for the Government’s proposed children’s rights referendum. One of the rationales advanced for that proposal is that Constitution makes it too difficult to adopt the children of married parents. This will have to be revisited.