The marriage equality debate has been resolved in a variety of ways across the world. The vast majority of countries to have introduced same-sex marriage (including, for example, the UK and New Zealand) have done so...
The marriage equality debate has been resolved in a variety of ways across the world. The vast majority of countries to have introduced same-sex marriage (including, for example, the UK and New Zealand) have done so through legislation enacted in parliament. Some, like the US and South Africa, have done so on foot of a national court decision.
In 2015, Ireland became the first country to introduce marriage equality by way of national referendum.
Many in Australia look to the use of the referendum in Ireland as an example of how its marriage equality debate might be resolved. Indeed, the government has a bill before parliament to hold a plebiscite on the issue in February 2017. But Ireland and Australia have very different constitutional traditions, and what works well in one country might be very damaging in the other.
Australia is famously cautious about introducing alien plants or animals into its unique ecosystem. In this case, it should be similarly slow to follow a foreign example in deciding which process is best suited to resolving a sensitive political and legal issue.
The method itself can be controversial
It is not uncommon for the mode of resolving the marriage equality debate to be a source of controversy in itself.
The US Supreme Court decision in 2015 that legalised same-sex marriage across the country was described by dissenting justice Antonin Scalia as a “judicial putsch” that:
… robs the people of … the freedom to govern themselves.
However, these criticisms were somewhat overstated. They fail to take account of the marriage equality debate in each country having followed established patterns and deeply embedded practices in the resolution of a religious-moral controversy.
Such controversies tend to be elevated to the level of constitutional politics in the US and Ireland. The endpoint of constitutional disputes is the US Supreme Court and the Irish referendum respectively.
The obvious comparison is with the debate over abortion. This has culminated in a series of Supreme Court decisions in the US and a series of referendums in Ireland – the same endpoints as the marriage equality debate.
Ireland has voted twice on divorce and three times on abortion since 1983. Voters are accustomed to these campaigns and have an expectation of being directly consulted on major changes of this nature. The deeply embedded nature of this practice removes some of the sting from the criticism that its marriage equality referendum was unduly majoritarian.
In Australia, the position on religious-moral issues such as divorce and abortion is governed by ordinary legislation. These have not been the subject of referendums or plebiscites. Why should marriage equality be different?
US Supreme Court justice Robert Jackson once wrote:
Fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
A vote in parliament is still a vote, but the legislative process filters out animus and prejudice by calling on representatives to explain and justify their vote, and affords minorities the opportunity to advance their interests through deliberation, bargaining and coalition formation.
Comparatively speaking, the legislative process is less prone to naked majoritarianism than a referendum is.
What happened in Ireland?
In the lead-up to the 2015 referendum, campaigners for marriage equality in Ireland reported a significant incidence of direct personal abuse on the campaign trail. Incidents included having holy water thrown on them, being told they should be “locked up” or “taken to the slaughterhouse”, or that a “Yes” vote would be “the end of humanity”.Author
Perhaps inevitably, the insults flowed in both directions. Opponents were labelled bigots and homophobes.
The parliamentary route removes the need for campaigners on either side to go door-to-door asking for votes and running the gauntlet of abuse.
The broader public nature of a referendum debate places more scrutiny and pressure on minority groups. Opponents of marriage equality in Ireland (as in California and elsewhere) expended considerable resources in portraying same-sex couples as inferior or unsuitable parents.
An LGBT helpline service had its busiest year ever in Ireland in 2015. There was a huge spike in demand in the lead-up to polling day from people seeking support:
… to cope with the intensity of having their lives debated in public, or to deal with negative attitudes expressed by family members or friends.
The campaign for marriage equality in Ireland was ultimately successful. And some have pointed out that direct public involvement in the process gave the decision added legitimacy.
While this may be true, this added legitimacy came at a significant cost. This cost was largely avoided in countries such as the UK or New Zealand, where the matter was decided in parliament.
Those jurisdictions do not appear to have experienced problems with the legitimacy of the outcome – because, unlike in Ireland, the referendum was not an important part of their constitutional tradition.
Tread with caution
Australia needs to be cautious when considering which lesson to learn from the Irish marriage equality referendum.
First, Ireland’s decision to hold a referendum was more a function of constitutional law than a conscious choice. While some argued the Constitution did not define marriage, there was consensus among the political and legal establishment that a constitutional amendment was necessary to introduce marriage equality. This is clearly not the case in Australia.
Second, Australia has a much more limited tradition than Ireland of referendums in general, and of the plebiscite in particular. Just one plebiscite – on a national song – has been held since 1917.
Most significantly, almost all national referendums in Australia have focused on issues concerning governance rather than on individual rights.
This is not to say Australians are not capable of holding a fair and robust debate. It is simply to observe that where moral controversies are not ordinarily resolved by a direct vote of the people, the argument that minority rights should not depend on the outcome of such a vote becomes much more compelling.
In the absence of a deeply embedded practice of settling disputes by plebiscite, the costs that would accrue to the LGBT community are difficult to justify on principled grounds. These costs could largely be avoided by resolving the matter in parliament.
Authors: Conor O'Mahony, Senior Lecturer in Constitutional Law, University College, Cork