We are pleased to welcome this guest post from Professor Donncha O’Connell, Head of the School of Law at NUI Galway.
Voting no to marriage equality will have as much effect on surrogacy and other forms of assisted human reproduction as voting no to divorce had on rates of marriage breakdown and voting yes to an abortion ban had on the numbers of abortions obtained by Irish women in the UK. Opponents of progressive social change seem to have scant regard for effectiveness in relation to the things that they oppose and, in this country, they have form.
If you really cared about things like the right to life of the unborn and the constitutional protection of indissoluble marriage you would have to view the period since the 1990’s as abjectly disappointing. Insufficient attention has been paid to the paradoxical role of socially conservative activists in accelerating progressive social change.
This is worth reflecting upon as we endure yet another constitutional referendum in which doom-laden predictions of a dystopian future are amplified in response to what is essentially a conservative (in the true sense) proposal to open the institution of marriage to persons of the same sex.
The hook on which opponents of marriage equality hang their opposition is, curiously, children’s rights. That is why the recent intervention by former President, Mary McAleese, was so powerful. In effect, she said that this referendum is all about children’s rights. It’s about the rights of children growing up gay as much as it is about the rights of parents who happen to be gay. She stole the ill-fitting clothes of the opponents of marriage equality and wore them very well.
So what do those of us who support the proposed constitutional amendment to allow for marriage equality fail to understand when, apparently, we fail to get the messages – overt and subliminal – of the No side?
Are we really being asked to vote No to aspects of the Children & Family Relationships Act, which is now law, by voting No to the proposed constitutional amendment?
These are not merely rhetorical questions and it is important that they are answered if only to engage with the core agenda of the opponents of marriage equality which is informed by a misguided faith in the Constitution as an instrument for the maintenance of social ideals that, frankly, don’t exist. Thus, in the past, we were asked to believe that banning abortion in the Constitution would prevent abortions and that banning divorce in the Constitution would prevent marriage breakdown. They were spectacularly wrong on both counts and they’re wrong again. Voting No to marriage equality will not end the thing that some people wish didn’t exist – families in which loving, committed relationships exist between persons of the same sex and their children.
This time, the opposition is nuanced somewhat with concessions like ‘why do you need marriage when you have civil partnership?’ The irony that this point is now made by those who opposed civil partnership with some vehemence is not lost on many but it is also revealing in other ways.
The real animating factor in the opposition to marriage equality is the desire to maintain inequality. If the norm of marriage between persons of the opposite sex is not privileged in some respects, with those privileges denied to those in non-marital relationships, then marriage as an institution essential to the ordering of society is undermined. This ideal enshrined in the 1937 Constitution will, if the proposed amendment is passed, be extended to married couples of the same sex. It will still be possible, under an amended Constitution, to treat opposite-sex and same-sex couples who are not married differently. It remains to be seen whether a single persons’ opposition to the amendment will emerge!
So what really lies at the heart of opposition to marriage equality is a narrow and aggressively exclusive vision of marriage. It is about staking a claim to a set of privileges and fighting hard to keep them. Anything that challenges this vision will be dismissed as an argument for ‘the end of the world as we know it’. This is merely an echo from earlier referenda on other issues in which ‘the world as we know it’ had already ended with nothing to gain from constitutional resuscitation.
It might be comforting to vote against something that you do not like but cannot stop but it surely raises the question – why bother? Is it the easy option to seek to enshrine ideals in the Constitution that are entirely at odds with social realities and hurtful to many citizens? Do we seem like better people by opting for high-minded fictions with a veneer of constitutional authority that fool nobody except the wilfully deluded or stubbornly hypocritical?
The marriage equality referendum on May 22nd provides us with an opportunity to align the lived realities of real people’s lives with a fairer constitutional vision in an honest and mature manner. If this is ‘the end of the world as we know it’ for some, perhaps this will not be the worst thing in the world for many.
Professor Donncha O’Connell is Head of the School of Law at NUI Galway. The views expressed in this piece are personal.