Marriage Equality and the Irish Constitution: Why are we having a Referendum?

Dr Conor O’MahonySenior Lecturer in Constitutional Law, UCCconor.omahony@ucc.ie@ConorUCCLaw

Information Cascades

Does the Constitution PermitMarriage Equality?

“It is my strong belief, based on sound legal advice, that gay marriage would require constitutional change and in my view a referendum on this issue at this time would be divisive and unsuccessful and, furthermore, would jeopardise the progress we have made over the last 15 years” (Irish Times, December 2007)

Does the Constitution PermitMarriage Equality?

“There is common ground in our understanding of the Constitution that a constitutional referendum would be required to introduce the status of same-sex marriage.” (Dail Debates, January 2010)

Does the Constitution PermitMarriage Equality?

“The introduction of full civil marriage for the gay community would require a constitutional referendum, as has been indicated by other speakers. This is the advice of the Attorney-General and our party’s legal advice.” (Dail Debates, January 2010)

Does the Constitution PermitMarriage Equality?

“…absolute and clear protection is given in Articles 40 and 41 to marriage as an act between persons of opposite sex. I am not saying that in the future that could not change. However, the only way it could change is if there is a referendum.” (Dail Debates, January 27 2010)

Does the Constitution Permit Marriage Equality?

• Article 41 of Irish Constitution & Zappone and Gilligan v Revenue Commissioners (2006)• Almost universally assumed to preclude marriage

equality – but do they???

What does the Constitution say about Marriage?

• Article 41.3: “The State pledges to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”•Marriage not defined• Clearly understood as opposite-sex when

drafted in 1937 but original intent is not decisive

What have the courts said?

•Walsh J, McGee v Attorney General (1974): • “… no interpretation of the Constitution is

intended to final for all time. It is given in the light of prevailing ideas and concepts.”• Quoted with approval by Dunne J in

Zappone and Gilligan• So is “Marriage” in Art 41.3 to be defined

by present-day ideas and concepts?

What have the courts said?

• Confusion in Zappone and Gilligan decision• Dunne J distinguished between “ascertaining

unenumerated rights and redefining a right which is implicit in the Constitution and which is clearly understood”• Held she had “a difficulty in this case in accepting

the arguments of the plaintiffs to the effect that the definition of marriage as understood in 1937 requires to be reconsidered in the light of now prevailing standards and conditions.”

What have the courts said?

• “How then can it be argued that in the light of prevailing ideas and concepts that definition be changed to encompass same sex marriage? ... as recently as 2004, s. 2(2)(e) of the Civil Registration Act was enacted. That Act sets out what was previously the common law exclusion of same sex couples from the institution of marriage. Is that not of itself an indication of the prevailing idea and concept in relation to what marriage is and how it should be defined? I think it is.”

What have the courts said?

Dunne J accepted “living constitution” doctrine

She then suggested that current consensus was irrelevant to definition of marriage (authority she cited did not support this point)

She then examined current consensus anyway, and used it to define marriage as opposite-sex only

What have the courts said?

• At best, Zappone and Gilligan is ambiguous and contradictory• Better view is probably that definition of

marriage is to be determined by current consensus• Two passages from Zappone and multiple other

authorities support this conclusion• One passage suggests otherwise, but is not

supported by the authority it cites

Who gets to decide?

• If provisions of Constitution are defined by reference to current consensus – who gets to decide what that consensus is?• The courts could decide – but difficulties

with democratic legitimacy and institutional competence• The Oireachtas is better placed to

represent the views of society

Who gets to decide?

• Dunne J cited the Civil Registration Act 2004 as evidence of consensus at the time• If a “Marriage Equality Act” were enacted

in 2014 – that would represent consensus today• Open to challenge in the courts – but who

would have standing to bring challenge?•Why should the courts not defer to

legislature’s assessment of consensus?

Law and Politics

• Referendum not legally necessary• Political situation has made it so• TDs unwilling to legislate without referendum• Matter referred to Constitutional Convention• Public think a referendum is necessary and

expect one to happen• Legislating without referendum no longer

politically feasible• Court decision potentially damaging – potential

for Proposition 8-style backlash

Disadvantages of Referendum

• Unusual way to advance minority rights claims• “[F]undamental rights may not be submitted to vote;

they depend on the outcome of no elections.” (Justice Jackson)• No filter on tone of debate• Easier for citizens than for politicians to base vote on prejudice or animus• US experience: marriage equality lost 30

referendums in a row• May be difficult to secure a second shot if it fails

Advantages of Referendum

• Durability – successful outcome unlikely to be reversed• Legitimacy – harder for losers to claim they didn’t get a fair fight• Shot at history: 3 US States recently approved

marriage equality by referendum – but no country in the world has done so by national referendum• Ireland could be a world leader on a key equality and human right issue

Further Reading

• O’Mahony, “Principled Expediency: How the Irish Courts Can Compromise on Same-Sex Marriage” (2012) 35 Dublin University Law Journal 199, available at http://ssrn.com/abstract=2321595

• O’Mahony, “If a Constitution is Easy to Amend, Can Judges be Less Restrained? Rights, Social Change and Proposition 8” (2014) 27 Harvard Human Rights Journal (forthcoming at www.harvardhrj.com)