Today is the tenth anniversary of the referendum that paved the way for the legalisation of same-sex marriage in Ireland. Brian Tobin writes that while the referendum was both unnecessary and problematic, it effectively future-proofed same-sex marriage as a fundamental right.
On 22 May 2015, Ireland held a referendum on amending the Constitution of Ireland that ultimately resulted in the legalisation of same-sex marriage. At the time, I argued the referendum was unnecessary because of an earlier High Court case taken by a same-sex couple seeking recognition of their Canadian same-sex marriage for the purposes of Irish tax law, in 2006.
Although the High Court in that case declined to recognise a right to marry for same-sex couples under Article 41 of the Constitution of Ireland, the provision concerning the right to marry in which “marriage” was (at the time) undefined, it largely arrived at this conclusion by deferring to a prohibition on same-sex marriage in legislation enacted by the Irish Parliament (the Oireachtas).
The High Court declared that ultimately, it was for the legislature to determine the extent of the legal recognition afforded to same-sex couples, a deferential ruling which equally appeared to indicate that if the Irish Parliament subsequently chose to introduce same-sex marriage through legislation, Article 41 of the Constitution would not be interpreted by the courts as posing any barrier to this.
As the Supreme Court at the time was similarly deferential to the Oireachtas on matters of social policy, it would have been unlikely to adopt a different view to the High Court if a same-sex marriage Bill had been referred to it by the President for a decision on its constitutionality before being signed into law. Further, internationally, constitutional challenges to same-sex marriage laws had failed.
The superior courts in countries like Spain, Portugal and France upheld the validity of same-sex marriage legislation when constitutional challenges were mounted against it, by confirming that their respective parliaments had the power to open up the institution of marriage to same-sex couples, and their national constitutions did not impede such progressive legislative reform for this minority group.
Therefore, I would reiterate that, in 2015, the Marriage Referendum was a legally unnecessary venture taken by the Fine Gael/Labour coalition government – same-sex marriage legislation would have sufficed.
A crude process
In addition to being unnecessary from a legal perspective, the Marriage Referendum was a crude process that forced a historically oppressed minority group to rally together and literally plead with the majority for access to the revered institution of marriage. The phenomenal “Yes Equality” campaign literally had members knocking on doors nationwide for months prior to the referendum to get the Irish public on side by putting a human face on the issue of same-sex marriage rights.
There was also a very active “No” campaign that had a profound effect on LGBT+ persons. A survey of the negative social and psychological impacts of Ireland’s “No” campaign, subsequently conducted by Australian academics at the University of Queensland and Victoria University in conjunction with Irish marriage equality activists and LGBT+ groups, found that of the 1,657 participants, 71% reported that they often or always felt negative in the months leading up to the Marriage Referendum, due to this campaign’s activities.
All of this could clearly have been avoided if the Irish Parliament had exercised its power to legislate for same-sex marriage instead. In 2017, in Australia, a national “postal vote” on marriage equality was held, albeit a non-binding one, merely designed to gauge public opinion on introducing same-sex marriage. The vote was overwhelmingly positive and marriage equality legislation was later enacted by the federal Parliament in Australia.
However, akin to Ireland’s Marriage Referendum, this too was a national vote on minority rights. The Australian Senate Finance and Public Administration References Committee later launched an inquiry into the public voting process. This concluded that a national vote had never previously been used to inform parliamentary processes on a matter of human rights for a minority group, and that it should not be used in this way in the future. This advice is equally applicable in an Irish context, and calls into question whether our record of being the first country in the world to extend the right to marry to same-sex couples using a popular vote is laudable.
Future-proofing a fundamental right
All of this aside, the Marriage Referendum was a resounding success in which over 62% of those who voted said “Yes” to marriage equality. It is unarguable that, by inserting an express right to same-sex marriage in the Constitution, the referendum undoubtedly provided far greater legal protection for marriage equality than legislation would have.
Indeed, in other countries like the UK and Australia, where marriage equality was introduced through ordinary legislation, this could hypothetically be repealed by a future anti-LGBT+ administration. In an ever-changing world, where LGBT+ rights appear to be increasingly under attack, even in EU member states, enshrining marriage equality in the Constitution in 2015 has at least ensured that only the Irish people, through a future referendum, can vote to remove this fundamental right of same-sex couples from the Constitution and laws.
In 2015, the significance of the Marriage Referendum in future-proofing one’s right to marry a person of the same sex from the type of anti-LGBT+, right-wing politics that appears to be on the rise, and might eventually find its way into the mainstream even in Ireland, would have gone largely unappreciated.
Today, in an increasingly polarised and uncertain world, this legally unnecessary referendum takes on new political and social significance for guaranteeing that, for present and future generations, “marriage may be contracted in accordance with law by two persons without distinction as to their sex”. The future-proofing of a fundamental right for LGBT+ persons is arguably the greatest legacy of the Marriage Referendum, and for that, we should be proud (pun intended). Happy tenth anniversary, marriage equality.
Note: This article gives the views of the author, not the position of EUROPP – European Politics and Policy or the London School of Economics. Featured image credit: Mr. Sergey Olegovich / Shutterstock.com
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