Is a referendum needed to introduce same-sex marriage?
Experience from other countries shows that there are many ways to achieve marriage equality, and the referendum is rarely one of them
Should same-sex couples be allowed to legally marry on an equal basis to opposite-sex couples? This is one of the foremost legal and political controversies in Ireland today. However, bound up with the question of what to decide is a related legal and political controversy: who gets to decide? The people, their elected representatives, or the courts?
In Ireland, it seems that the people will ultimately make the decision by way of a referendum some time in 2015. However, experience from other countries shows that there are many ways to achieve marriage equality, and the referendum is rarely one of them.
The two main vehicles for advancing the cause of marriage equality around the world have been courts and parliaments. Courts have long been the refuge of minority groups seeking to pursue a right that is denied to them. Since judges are charged with protecting individual rights without regard to popular opinion, oppressed or unpopular minorities can sometimes achieve legal change through constitutional litigation that might not have been possible through lobbying or electoral pressure.
Court decisions provided the catalyst for marriage equality in South Africa and several Canadian provinces, and an increasing number of states in the US are following suit. Massachusetts was the first in 2004, followed by Iowa, California, New Jersey and New Mexico. More recent pro-marriage equality decisions in Utah, Oklahoma and Virginia have been stayed pending appeal.
Parliaments are perhaps less suitable than courts for protecting minority rights, since their members need to win as many votes as possible to be re-elected. Yet the need to appeal to a wide spectrum of voters, to bargain with coalition partners and to engage in debate and deliberation tempers the purely majoritarian tendencies of parliaments. It also renders it more difficult to advance a position based on prejudice or animus, and requires more rational justifications to be offered.
As advocates for marriage equality have gained allies, they have won parliamentary votes in 14 countries (including the UK, New Zealand, Canada, France, Spain and Portugal) and in 12 US states, often by significant margins.
Referendums, by contrast, involve little by way of compromise, and require no moderation in one’s views. Instead, they offer a binary yes or no choice, and allow people to advocate on either side in whatever language they choose to use, temperate or intemperate. The result can be hostility and polarisation – hardly an ideal climate in which to decide on sensitive issues.
Even though the Irish referendum is still one year away, there is already ample evidence of this phenomenon, as protagonists have traded accusations, insults and solicitors’ letters. The contrast with the respectful tone evident when the matter was discussed at the Constitutional Convention last year is palpable.