The choice of a referendum on same-sex marriage

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.