It shouldn’t have been like this. Back in 2006, the High Court gave a signal to the parliament that they could simply pass a law allowing gay marriage. Instead, Ireland’s politicians dropped the ball.
In the 2006 case, a lesbian couple sought to have their Canadian same-sex marriage recognised under Irish law, but the court stated that article 41 of the constitution did not embrace same-sex marriage, and hence there was no obligation to recognise the plaintiffs’ foreign same-sex marriage. But the High Court also made it clear that the extent of the legal recognition to be accorded to same-sex unions was a matter for parliament.
Thus, if the Irish parliament sought to introduce same-sex marriage via legislation, as in the UK, the courts could regard such legislation as updating the meaning of marriage in the constitution. After all, the term “marriage” is undefined in article 41.
Although article 46 provides that the constitution’s provisions can only be amended by the Irish people in a referendum, there is no need to amend a provision that does not explicitly preclude same-sex marriage and which the High Court itself has indicated can be updated by an act of parliament. Indeed, the Irish courts regularly defer to the Irish parliament’s view on matters of such social sensitivity.
So why is there a referendum being held on a simple legislative issue? Because same-sex marriage is a veritable political hot potato, and none of the political parties is really that keen to champion its introduction. This is why the previous government introduced civil partnerships even though the High Court indicated that same-sex marriage legislation would be constitutionally sound. This is also why the current government passed the issue to a constitutional convention for deliberation.
The convention was comprised of 33 members of parliament and 66 citizens randomly selected from the electoral register. It was an exercise in participatory democracy tasked with considering a number of issues, including whether to make provision for same-sex marriage in the constitution. In 2013, the vast majority of members of the convention voted in favour of making provision for same-sex marriage in the constitution, and shortly thereafter the government committed to holding a same-sex marriage referendum in 2015.
The government should not be lauded for this development as it was driven not by its members, but by a body comprised largely of ordinary citizens. Nonetheless, allowing the Irish people to decide in a referendum as to whether same-sex marriage should be granted express constitutional protection is undoubtedly transparent (and politically convenient).
Hope for Yes
The latest opinion polls indicate that a large majority are prepared to vote Yes. But the last time an amendment was proposed to article 41 was in 1995, to provide for the introduction of divorce the amendment barely carried, with 50.28% of Irish citizens voting Yes and 49.72% voting No.
Nonetheless, the Yes campaign has been doing a tremendous amount of work nationwide in recent weeks to actively encourage a Yes vote. I hope that in the aftermath of Friday’s referendum Ireland will indeed be a more equal society that allows its gay and lesbian citizens to marry. I also hope we will not be left regretting the fact that the last Irish government did not heed the High Court’s pronouncement back in 2006 and provide for marriage equality via legislation, like our nearest neighbours did in the UK.