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.

Continue reading “Same-sex marriage doesn't need a referendum”

Same-sex marriage doesn't need a referendum

Marriage Equality: What a Difference a Week Makes?

Edit @ 11 am: It has been pointed out to me that the Constitutional Convention ought to be completed its work before the Zappone case is completed, which puts a different spin on one of my points below and does raise serious questions about why this issue has not been prioritised in the workplan for the Convention.

Since the Tánaiste declared his support for marriage equality last week, there has been significant development in the discourse around marriage equality in Ireland from at least some quarters. Two further ministers–Alan Shatter and Leo Varadkar–declared their support in principle for marriage equality. The Minister for Education Ruairi Quinn also declared his support, albeit in the context of a claim that constitutional change would be required. I am like a broken record on this, as are others, but in fact we only think that constitutional change would be required; we do not know. Contrary to popular opinion the Constitution does not define marriage, but marriage has been defined in the context of constitutional cases as being between a man and a woman. However, whether it is exclusively between a man and a woman as a constitutional matter is not definitively known and will not be until we get the Supreme Court judgment in Zappone & Gilligan v Revenue Commissioners. It might, therefore, be wise for members of government to stop speaking as if the Constitution were (a) clear about the meaning of marriage, (b) static in its meaning (McGee case, anyone?), and (c) uncontested. Yesterday the Taoiseach got in on the Act, as did the Fianna Fáil leader Michéal Martin. Continue reading “Marriage Equality: What a Difference a Week Makes?”

Marriage Equality: What a Difference a Week Makes?