Sometimes you must fight for your rights if you want to win

Opinion: Those in favour of same-sex marriage need to develop a campaign independent of political parties

Senator Katherine Zappone with  Dr Ann Louise Gilligan. Should they have to ask heterosexuals’ permission to marry? Photograph: Dara Mac Dónaill

Senator Katherine Zappone with Dr Ann Louise Gilligan. Should they have to ask heterosexuals’ permission to marry? Photograph: Dara Mac Dónaill

Fri, Feb 21, 2014, 12:01

When the Children’s Rights referendum was being held in 2012, I took two months off to campaign in favour of it. Many of my friends thought I was daft. “Sure it’s going to pass. Everybody’s going to vote yes! Who would vote against rights for children?” Well, quite a number did: 42 per cent – and that was despite the fact that no political party and none of the major churches had opposed it.

This is a conservative country – Ruairí Quinn says that at every election when Labour gets a smaller vote than it expects. We are particularly conservative when it comes to family. Politicians who want to change anything to do with the family tread warily and prepare the ground well. The first divorce referendum was defeated because the legislative groundwork had not been done to ensure that first families would be provided for. The Fine Gael Labour coalition did not make that mistake in the 1995 referendum – but even then it was only passed by less than 1 per cent.

Same-sex marriage
Now we face the issue of same-sex marriage. Why should it matter that this is a conservative country if marriage equality is a human right, which it is? Why shouldn’t we simply legislate for marriage equality and be done with it. The answer is that this issue is probably going to end up needing a constitutional referendum no matter what way you proceed, and the passing of that referendum will require a job of level-headed persuasion and even education of that substantial part of our electorate who are conservative.

Those who argue that we should forget a referendum and simply legislate say there’s no constitutional barrier, that the Constitution doesn’t define marriage. However, the courts have interpreted the Constitution as meaning that marriage is between a man and a woman. The Government’s legal advice is that therefore constitutional change is needed. So if the Government were to go ahead and legislate, that legislation might well end up being struck down as unconstitutional by the courts. We would then end up having to call a referendum with an alienated electorate, angry at being bypassed in the first place.

This also assumes that the Government, or at least Fine Gael, would be ready to legislate for marriage equality. But when you talk to Fine Gael TDs, they say they want to wait and see what the people say in a referendum. They’re not going to move without cover from the electorate. And the Taoiseach isn’t exactly enthusiastic about it either. After Christmas, he said he did not agree with Eamon Gilmore that same-sex marriage is the civil rights issue of our generation. That didn’t mean, he said, that he didn’t support it and that he wouldn’t campaign for it in a referendum.

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