The Gazette 1967/71

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)