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The choice of a referendum on same-sex marriage November 25, 2013

Posted by Tomboktu in Bunreacht na hÉireann, Inequality, LGBT.
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The cabinet has decided to hold a referendum in 2015 to lift the ban on same-sex marriage.

Over on Human Rights in Ireland, Fiona de Londras raises two interesting questions that deserve attention:

  • why are we having a referendum in the first place? and
  • what is the personal and social cost of a referendum?

de Londras, formerly of UCD Law School and now at Durham University, argues that it is not certain that a referendum is needed. Instead of going straight to a referendum to amend the constitution, she suggests an alternative route that might avoid a referendum. That route is:

(1) pass an Act to that repeals section 2(2)(e) of the Civil Registration Act 2004;

(2) have that Act referred to the Supreme Court.

Section 2(2) of the civil Registration Act names five impediments to a legal marriage, listed (a) to (e); item (e) is “both parties are of the same sex“.

The President has the power under Article 26 to refer a Bill that has been passed by the Oireachtas to the Supreme Court to test its constitutionality. That process is time-bound, and would therefore produce a result quickly. If the Supreme Court finds that Bill to delete section 2(2)(e) is constitutional, the ban on same-sex marriage would have been lifted without a referendum. If, on the other hand, the Supreme Court rules against the amendment to the Act, then the proposal to amend the Constitution it can proceed. However, it is not necessary to go directly to a constitutional amendment.

Her second point is why that route whould be preferred.

Referenda in Ireland are divisive things; this is, perhaps, in their nature, and divisiveness in social discourse is not something to shy away from unnecessarily. However, that divisiveness is also not cost-free, and particularly not for the people whose rights and capacity to ‘belong’ within social institutions are being debated. There will be a social cost to this referendum. LGB people in Ireland will have to debate with neighbours and family members and try to convince them to acknowledge us as equal citizens in our own country. We will see, hear and read claims that we are somehow not deserving of the institutional, legal and social recognitions that come with the right to access marriage.

That will be harmful. The harms will vary; it may harm me by simply being hurtful, but what harm might it do to the mid-fifties farmer who never had the confidence to come out, or the person subjected to homophobic bullying in the workplace, or the 14-year old who thinks she might be lesbian? People are resilient, and will bear this harm I’m sure. Indeed, the harm will, I imagine, be lessened should the referendum succeed. But this does not mean that it will not exist.

de Londras’s concern is not theoretical. An acquaintance of mine commented last week that she, her partner and their two sons will not be answering the call from lgb organisations for families to participate in the campaign:

Full marriage really affect my family more than most, but I have no intention of making my wife or children the poster people for it.

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1. EamonnCork - November 25, 2013

The problem with referendums is that whereas in theory they offer an opportunity for the public to have a fuller say in the legislative process, that’s not what happens in practice. In reality you have a low turnout and many people well disposed to the reform proposed don’t bother voting. People who oppose it on the other hand make sure to turn out. Now, this says volumes about the advantages of commitment over wishing things well in a vague kind of way but, given that this issue, will have a real effect on people’s lives it’s a pity that it can’t be sorted out without the Carnival of Reaction which is sure to ensue.
It’s very difficult to win a referendum, not least because a lot of voters treat it is an opinion poll on the government. The unpopularity of the coalition means some people won’t be able to resist socking it to Kenny. Bored journalists of the kind who lionise the likes of Lucinda Creighton will find some excuse to say this isn’t the time for a referendum, opportunist FF, FG and maybe the odd SF and Labour politicians will say they’re voting against it because surely the country should be concentrating on curing the economic crisis and there will also be a lot of old fashioned homophobia buried under ‘but what about’ and ‘a lot of people will be uncomfortable.’
As someone said to me one time if there had been a referendum to ban sex back in the eighties it would probably have won. And it would probably still get a decent vote with plenty of serious politicians saying that while nobody was in favour of sex, and nobody disliked it more than them, it was necessary to allow it to continue taking place as enforcing a ban might be difficult. After all people don’t need to have sex but they do need to be able to pay their mortgages.
In reality there would be very little public disagreement with this issue were it to be legislated for. Try the ‘Gay marriage devalues everyone else’s marriage’ on the average sane person and see the answer you get. But a referendum campaign will see much hateful rhetoric from the extremes which won’t do anything for gay people or societal attitudes in general.
The problem is that politicians like referenda because they give them the chance to avoid passing laws which might be in any way controversial. Instead they throw them out to the country and campaign in a kind of lukewarm manner which shows that while they approve this measure, it’s not going to kill them if it doesn’t go through.
Hence the plethora of the yokes we’ve had in recent years.
We’ll also have the bizarre spectacle of people claiming they can’t support gay marriage because of ‘moral principles’, proudly puffing themselves up as they do so and receiving praise for their idealism by pundits who never ask why ‘moral principle’ only ever seems to apply to matters concerned with sex. No moral principle is ever invoked to oppose austerity, government TDs row along with that. Cuts in health and education, damage to the poor, the handicapped and children can be stomached no problem. But gay marriage or abortion and it’s time to get up on the moral high horse and act like Joan of Arc.
I wouldn’t hold your breath waiting for this referendum to take place. Something more ‘important’ will have been found to take its place by 2015. It’s a device to park the issue for a couple of years, the way tribunals were used to park questions of political corruption.
I hope I’m wrong about all this.

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