The government has finally committed to equalising marriage rights for same-sex couples by way of a referendum in 2015. The decision to hold a referendum – instead of using ordinary legislation – is not only unnecessary, I believe, but positively misguided. More to the point, the impulse to hold a referendum reflects many of the most unfortunate features of our legal and political culture: in particular, it reveals a good deal about the treatment and use of constitutional law (and constitutional discourse) in our politics. As I have argued previously, it is symptomatic in particular of the pervasive over-constitutionalisation of our politics.
Officially speaking the decision to hold a referendum instead of legislating is based on legal, not political reasons. Specifically it has been assumed that the concept of “marriage” enshrined in the Constitution is implicitly heterosexual, and therefore, that any ordinary legislation aimed at bestowing equal marriage rights would be unconstitutional in the absence of a constitutional amendment specifically mandating it.
This position relies on three pervasive, but ultimately false constitutional ideas. It assumes, firstly, that “marriage” in the Constitution has a fixed, objective meaning; secondly, that this meaning is heterosexual, and third, most crucially, that interpreting and defining constitutional terms like “marriage” is a matter exclusively for the Courts and never for the Oireachtas. As one legal academic put it recently, “it falls to the judiciary to interpret the Constitution” (Mark Coen, Irish Times, November 9).
This is a widespread view in our legal culture, but it fundamentally misrepresents the nature of constitutional interpretation. Constitutions – and especially our own – tend (for good reason) to use somewhat vague language. The Bunreacht is a political charter as well as a legal document, containing open-textured statements of political principle. To take just one example, Article 5 proclaims “Ireland is a sovereign, independent democratic state”. Ostensibly this is a source of legal principle. But interpreting what it means for a state to be “democratic” is hardly – to say the least – a matter of technical lawyerly skill. And since the Constitution is not a purely legal instrument, neither can its interpretation be considered solely a matter of legal knowledge.
Similarly, while the Constitution enshrines “marriage” as the basis of the family – the “fundamental unit group of society” – it leaves “marriage” undefined. Unlike statutes, constitutions deliberately leave such concepts under-defined, recognising that their meaning will evolve over the course of time. Constitutions are drafted in this way so that they can serve as a durable charter of values and principles for societies that will inevitably experience extensive social change. The Courts themselves have acknowledged that the meaning of constitutional concepts can evolve over time; terms like “marriage” do not have a fixed objective meaning (this was accepted in the High Court’s Zappone ruling).
Thus constitutional interpretation is not simply a technical legal skill: it is a truism that constitutional interpreters bring political values to bear, whether consciously or otherwise. And since constitutional interpretation is not a normatively neutral enterprise – since it engages political values at the deepest level – it cannot be considered the exclusive preserve of judges and lawyers. The opposite view – that constitutional interpretation is the exclusive domain of courts – is more dominant in our culture. Yet it does not stem from any coherent intellectual theory and we should not treat it as such. Rather it is a product of our legal culture’s self-conception – and particularly, its exaggerated sense of its own importance in constitutional matters. Curiously, this over-judicialised notion of constitutional interpretation is expounded more by academics, lawyers and even politicians than by judges themselves. As I have argued previously, the tendency to over-constitutionalise politics – and over-judicialise constitutional interpretation – not only has the effect of deflecting responsibility from political institutions; more saliently, it shuts off a range of fundamental questions from political debate. Less obviously, there has been a tendency to understand debates about constitutional structure, especially the respective roles and competences of different institutions, solely as an abstract, dispassionate consideration of statecraft. However, as Bourdieu’s analysis in The Force of Law might suggest, arguably it would be more useful to understand debates about institutional competence as assertions of positional capital by actors in the “field” of law, understood as a site of symbolic production.
To qualify this argument, of course there are advantages to certain areas of constitutional interpretation, particularly technical matters, being confined to the Courts. Clearly, issues concerning institutional competence, for example, the boundary between executive and legislative power, could not be adjudicated by political institutions themselves. Certainly, as a matter of fact, the Constitution explicitly grants the judiciary the final say concerning whether or not a statute is unconstitutional (article 34.3.2). But this does not mean that constitutional interpretation is exclusively a matter for the courts for all purposes and in all contexts. The principle of judicial supremacy in constitutional interpretation can be qualified in two important ways. Firstly, we can say that notwithstanding the exclusive jurisdiction of the superior courts to invalidate statutes on constitutional grounds, constitutional principles may have a directive as well as a limiting or checking function; thus, the legislature (and potentially other institutions) may have an initial interpretive responsibility, especially in areas where no precedent or case law exists. Thus constitutional interpretation outside of the courts may be anticipatory and supplementary. Secondly, and perhaps more controversially, parliaments might legitimately disagree with courts’ interpretation at least of open-textured constitutional provisions, particularly those concerning social and moral issues, and substitute an alternative view. This is not a clear-cut matter of political institutions defying judicial rulings on constitutional rights: for example, Supreme Court precedents may be outdated or unclear. In any event I argue that the task of parliaments when legislating in constitutionally controversial areas is not solely to interpret constitutional precedents, but rather (at least in some instances) to directly interpret the Constitution itself. The interpretation of the constitutional term “marriage” is a salient example.
Despite these points, too often the exclusive jurisdiction of the superior courts to invalidate unconstitutional statutes is conflated to a much wider, and ultimately false idea, that constitutional interpretation is exclusively a judicial matter.
To put this in more concrete terms, the Oireachtas, as the national parliament, should be recognised as having a subsidiary role, at least, in defining concepts, values and social institutions – including “marriage” – that are contained in the Constitution. Recognising this would go some way towards correcting our overly legalised conception of the Constitution. More immediately, it would debunk the idea that the Oireachtas cannot legislate for marriage equality – a view which, I argue, is based on a false view of constitutional interpretation as a lawyerly science that operates independently of political and social values. The prevailing view of constitutional interpretation is a classic example of a mystifying “expertist” discourse, as deeply political questions are presented in neutralist and technical terms. And as constitutional argument is conducted in the legal sphere, normative political debate is divested from the domain of the citizen to the domain of the expert. In effect, our politics is over-constitutionalised.
It might be argued that the people should nonetheless be given a direct say for reasons of democratic legitimacy. But it is easy to exaggerate the degree of democratic empowerment the referendum offers. Whereas it is depicted in our constitutional mythology as the ultimate expression of the people’s sovereignty, this ignores the various ways in which the people’s voice is shepherded and conditioned in the referendum process. The Government controls what proposals the people are permitted to vote upon: their role is limited to acquiescence or veto. There may well be great political value in the referendum, particularly in facilitating popular contestation of government, but it is naïve to see it as the ultimate or exclusive form of political expression by the people.
Finally, the Government’s decision to hold a referendum on marriage equality – instead of passing legislation – will also have concrete costs. In particular, it risks giving a publicly-sanctioned media platform for thinly-veiled bigotry directed against the State’s sexual minorities. As we were recently reminded by the Prime Time feature on same-sex adoption, sexual bigotry is now routinely presented in secularised, therapeutic terminologies. Far from fire and brimstone, the emphasis is on quasi-scientific notions of gender complementarity. Any referendum campaign will empower proponents of these insidiously sanitised doctrines far out of proportion to the prevalence of these ideas in society. Speech in itself – it hardly needs to be said – can inflict injury and violence, both directly and indirectly. This will of course be countered with the tired old free-speech tropes, beloved of particular species of naïve liberal: let everything be debated, sunshine is the best disinfectant, truth and reason will triumph in the “marketplace of ideas”, etc, etc. But this overlooks the salience of structural barriers to speech fora. The question of what forms of speech are legally tolerated is, in principle, separable from that of who gets access to fora and platforms for public speech (the referendum campaign is just an obvious example of this broader generalizable phenomenon). Contra the dominant liberal doctrine of “content neutrality”, the mechanisms for controlling access to speech fora are not morally or politically neutral. The argument is not that political mechanisms should somehow determine access to speech fora; it is rather that they already do in a pervasive way, and that we may as well confront this reality. More concretely, then, our political institutions should take care not to legitimise bigotry directed against sexual minorities; ultimately then, the decision to proceed by way of referendum, when legislation would suffice, may prove not only unnecessary, but positively harmful.