Same-sex marriage doesn't need a referendum

Recent months have seen the movement for same-sex marriage gain astonishing political momentum. At least three cabinet ministers have recently declared in favour of equalising marriage rights, while a recent opinion poll suggested that almost three quarters of the public agree. A broad spectrum of political opinion supports reform; this week, one local authority unanimously passed a resolution supporting equal marriage rights. Joining Labour and Sinn Fein, Fianna Fail, on this issue in particular, has somewhat rebranded itself as a socially liberal party, and in a broader lens there is little sign of any serious figurehead of opposition to marriage reform. Perhaps the culture warriors are keeping their powder dry for looming battles on abortion and school control.

In this environment, one would expect that, in a functioning democracy, this groundswell of support for same-sex marriage might naturally put legislative reform in motion. Alas, the Constitution has been dubiously invoked, yet again, as an overarching fetter upon political choice. The Government claims that legalising same-sex marriage requires a constitutional amendment and therefore, a referendum – that the Oireachtas is bereft of any power to substantially reform the institution of marriage. I think that this is not only wrong and misguided as a point of constitutional interpretation – it is also symptomatic of a deeper dysfunctionality in the relationship between politics and constitutional discourse.

There is a very tenuous basis for the assumption that the Constitution, as it stands, would prohibit legislation extending marriage to same-sex couples. This week, Ruairi Quinn appeared to suggest that the Constitution “defines” marriage (as exclusively heterosexual), hence the presumed need for a referendum amending the provisions of Article 41 to enable reform. But the Constitution does not define marriage. It affirms the state must protect the institution of marriage, and that the family is founded upon marriage, but does not define the term. It is clearly left to the Oireachtas, as the national parliament to define the conditions of validity and eligibility for marriage – at least within certain limits. This is one of the interesting paradoxes of Article 41: although the family is declared an “antecedent” and natural institution, superseding positive law, the family is defined relative to marriage, and so the question of who is entitled to marry – and therefore, count as a family – is left to the vagaries of ordinary legislation. Correspondingly, while the state is constitutionally bound to defend marriage, it is left up to itself to define what exactly it is to defend. Marriage is rhetorically portrayed as an antecedent and pre-political institution, but its parameters are in reality defined by contingent political choice.  It is simultaneously primordial and unstable.

Of course, just because “marriage” is left undefined in the Constitution doesn’t mean that it is a blank slate, capable of radical re-conception of any sort. Marriage clearly bears some historical meaning, and the Oireachtas does not enjoy a carte blanche to redefine it in any manner it pleases. It would seem unlikely, for example, that it could, constitutionally, legislate for child marriage or polygamy, given the necessity of reading the provisions on marriage in harmony with other constitutional requirements. The Oireachtas has a certain freedom to expand and contract the parameters of marriage, but this power is not unfettered. For example, it was recognised in Murray v Ireland that there is a constitutional right to marry; therefore, it follows that the Oireachtas could not excessively constrict eligibility for marriage in legislation without violating this right.

The salient question, then, is whether the Oireachtas can, conversely, extend marriage rights to a group historically excluded from that institution. This is quite a different question to whether or not, as considered in the Zappone case, same-sex couples enjoy a constitutional right to marry which overrides the legislation in force. Thus, the intermediate possibility is that the constitution neither forces the state to provide for same-sex marriage nor prohibits it from doing so, leaving this decision within the remit of the Oireachtas.

By their nature, Constitutions contain broad, open-textured and often vague clauses which are deliberately left undefined. Along with abstractions like equality before the law, examples in the Irish Constitution include the concepts of “marriage” and “unborn”, which are accorded a high degree of recognition and protection, but are left unclear in their scope. The meaning of Constitutions, in their application to specific facts and circumstances, is indeterminate linguistically and textually. For some, this requires us to consult the intentions of the constitutional drafters and enactors as a supplementary guide to constitutional meaning – to fill in the gaps and yield concrete answers for hard cases. But this originalist method is unpopular in Ireland, not only because of the practical difficulties in ascertaining historical intentions in relation to obscure, unforeseen eventualities such as the constitutional status of in vitro embryos, but also because of a deeper sense that it is inappropriate, in the lens of democratic legitimacy, to confine the constitutional meaning in historical permafrost. As a foundational political charter, it is felt it should be read in the “present tense”, in line with evolving social mores and conceptions. Accordingly, when it comes to interpreting the outer limits of what the constitutional concept of “marriage”can legitimately encompass, it is not decisive at all that those who drafted and voted for the Constitution would never had envisaged it extending to same-sex couples.

This conception of the “living Constitution” was firmly established in the 1972 McGee case and has been re-affirmed since. Indeed, in Dunne J’s ruling in the High Court judgment of Zappone, it was accepted that the meaning of the constitutional concept of “marriage” was not necessarily that which was understood in 1937. In a bizarrely circular logic, the court held that the meaning of marriage could evolve, but that it had not in fact done so because the Civil Registration Act 2004 defines marriage as excusively heterosexual (the irony of this being that the Oireachtas assumes the Constitution requires it to legislate in this way). But consequently this reasoning implied that if legislation were to equalise marriage rights, it would be taken as an indiciation that the constitutional concept of marriage had evolved – and this legislation would not, then, be struck down as unconstitutional.

More generally, beyond the politics and law of marriage, there has been a marked trend in Supreme Court jurisprudence towards affirming the role of the Oireachtas in the definition of vague constitutional concepts. This was exemplified in the case Roche v Roche [2010], which considered the meaning of the constitutional term “unborn”, as the entity specified as enjoying a right to life under the eighth amendment. The judgment was marked by a general reluctance across the Court to conclusively define “unborn” – this, it was assumed, fell within the remit of the Oireachtas, which some members of the Court implored to legislate in order to provide clarity in this area. Hardiman J went so far as to assert that the “primary” responsility to intepret the term “unborn” lay with the parliament, not the Supreme Court.

In this era of (relative) judicial deference to the legislature, I believe a similar approach would almost certainly be taken in relation to the definition of marriage under Article 41. Were the Oireachtas to legislate for same-sex marriage, it would be extremely surprising if the Supreme Court were to substitute its own idealised, historical conception of “marriage” and strike down the legislation. This would be an unprecedented instance of judicial activism, difficult to reconcile with the intellectual trajectory of the court over the past decade.

There is of course a plausible argument for a “to be sure to be sure” approach – that an amendment specifically allowing same-sex marriage should be introduced anyway, for the sake of clarity and/or democratic legitimacy, given the far-reaching nature of the change involved. But constitutional referendums aren’t meant, in Ireland, as a therapeutic deliberative forum for sensitive social issues: they are meant exclusively as a procedure of constitutional amendment. The impulse to remit the issue of same-sex marriage to the constitutional convention – perhaps as a mediation mechanism for divergences between the government parties on “gay marriage” – is a symptom of the relative dysfunctionality of the Oireachtas as a deliberate assembly. It is widely acknowledged that Dail Eireann enjoys little initiative or power independent of the Government political parties that control the majority of seats through the whip system, and that it is consequently a relatively emasculated institution in dire need of reform. In this lens, it is depressing that, given the need to revitalise and reform a national parliament capable of becoming a properly deliberative assembly, rather dubious interpretations of constitutional law are invoked to place a fetter on the already diminished freedom of action it enjoys as an agent of political and social change. This was reflected in the dubious  invocations of the constitution during the last Government in relation to judicial pay and special arrangements for protestant schools. There is a tendency to take constitutional lawyers and constitutional advice slightly too seriously – to take at face value motley affirmations of constitutional principle as if these were the exclusivist knowledge of a technocratic, expertist caste of legal scientists. In reality, constitutional interpretation is a rough and ready enterprise, involving open-ended elements of political, ideological and moral appraisal that are misleadingly presented as neutral, technical expertise. Lawyers are imagined either as sages emerging from conclave, divining unfathomable constitutional propositions presumed to be beyond the lay mind – or as clinical, scientific figures, engaged in the search for neutral “solutions” in the manner of doctors or chemists. Propositions of constitutional right mask deeper ideological and political positioning, despite what many lawyers will say. Constitutional expertise succeeds in self-mystification to an extraordinary degree in Ireland: law is perhaps the closest thing we have to a secular clericalism. The British mainstream has always been sceptical to entrenched constitutionalism, while in the US there is a much greater public consciousness of how propositions of constitutional law simply mask and mystify political and ideological choices. Yet Irish politicians and public interlocutors seem to swallow hook, line and sinker the supposed fetters placed by the Constitution on our political choices. In an era in which the dysfunctionality and marginalising of representative public institutions represents a great democratic crisis, I am increasingly convinced that our peculiar conception of constitutionalism increasingly does more harm than good  for the cause of republican democracy.

As for same-sex marriage, the constitutional stance of the Government and the Oireachtas majority smacks of bad faith in the sense that it denies its own freedom of action, attributing this imagined impotence to a phantomistic, formal fetter. On marriage rights, the national parliament must step up to the mark, and on constitutional claims, we need a healthy measure of scepticism.



Same-sex marriage doesn't need a referendum

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