Eoin Carolan: Some Lessons from Ireland’s Marriage Referendum?

Eoin CarolanAlmost six months after being popularly endorsed in a widely publicised referendum, Ireland’s first same-sex marriages took place on November 17th last.

While the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 was amongst the more high-profile attempts at constitutional change in recent years, the vote was actually one of eight referenda on constitutional questions that have been held since 2011.

The regularity of these recourses to the People gives some indication of both the centrality of the referendum in Ireland’s process of constitutional amendment, and the relatively low institutional barriers to the commencement of the amendment process. A constitutional amendment must be initiated in Dáil Eireann (the lower House), passed by both House of the Oireachtas (Parliament), and then ratified by a simple majority of the votes cast in a referendum.

In principle, therefore, the amendment process is quite easy for governments to initiate. In practice, the experience of unexpected defeats on a range of referendum proposals means that they are often reluctant to do so. Nonetheless, the fact that the amendment process can and has been invoked to deal with legal or political controversies has broader implications for Ireland’s constitutional order: for the legitimacy of judicial review; for the courts’ jurisdiction to enforce socio-economic rights; and, perhaps, for the judiciary’s attitude to litigation that raises contentious social or political questions. The marriage equality referendum may, as argued below, provide an example of the latter kind of impact.

The Marriage Referendum

Looking first at the May referendum, one striking feature of the post-referendum commentary has been how the size of the victory (62%-38%) – and, perhaps, the extent to which that majority runs counter to traditional(ist) notions of Irish culture – has encouraged broader speculation about social change in Ireland. It has been suggested that the decision may indicates an increased liberalism on social or moral issues and that this may, in particular, have implications for an ongoing campaign to amend the Irish constitutional approach to abortion (about which there has been renewed controversy and focus in recent years).

There is an obvious need for caution with any such second-guessing of popular sentiment. On an anecdotal level at least, there may be much to be said for Fintan O’Toole’s account of the Yes vote as one inspired by a basic empathy for a friend, neighbour or family member:

Because what actually changed Ireland over the last two decades is hundreds of thousands of painful, stammered conversations that began with the dreaded words “I have something to tell you…” It’s all those moments of coming out around kitchen tables, tentative words punctuated by sobs and sighs, by cold silences and fearful hesitations. Those awkward, unhappy, often unfinished conversations are where the truths articulated so eloquently in the campaign were first uttered. And it was through them that gay men and lesbians became Us, our children, our families.

If so, the result was less a matter of political or liberal ideology and more a consequence of the greater social visibility of the lesbian and gay community in recent years.

In terms of any future referendum on abortion, therefore, the simple account of the marriage equality referendum as a liberal step may be misleading. A more relevant lesson may be about how personalising abstract constitutional or political questions may have an impact on voters’ approach to a referendum. The number of high-profile individuals who have given interviews about their personal experiences of abortion in recent months may indicate the emergence of a similar approach to that issue.

The influence of the Constitutional Convention

A second and related lesson from the marriage debate may be about the role of the Constitutional Convention in the process. This body was established as a mixed assembly of elected politicians and ‘ordinary’ citizens to consider potential reforms to the Constitution on a number of issues. The most high-profile of these was the marriage question. The Convention voted substantially in favour of an amendment, the Government adopted that approach and the proposal was put to the People.

Here again, however, this simple account of the process may be misleading. It is arguable that there were many weaknesses in the Convention process which undermined its’ claim to deliberative legitimacy and, in particular, left it susceptible to elite manipulation. A more nuanced – if cynical – explanation of its value is as a device to allow a coalition government with reportedly differing views on this issue to pass the buck (and responsibility) for the decision. Brian Tobin at least has been heavily critical of how the government used the Convention to limit their exposure to potential criticism while ultimately claiming a large degree of credit once the size of the majority in favour became obvious. That the Taoiseach (Prime Minister) – as head of a party with internal divisions on the abortion issue – is already suggesting that the abortion issue should be referred to a new convention and then subject to a free vote shows the potential for politicians to use the symbolic value of ‘ordinary citizens’ in “opportunistic and cunning” ways.

Constitutional reform by referendum

Turning to the broader implications of the referendum, the generally positive reaction to the result might be seen as a further step in the rehabilitation of the referendum as a method of constitutional amendment. As Stephen Tierney has documented – and the Scottish independence and Leave/Remain votes show – the referendum has become increasingly popular in recent years. The political and democratic attractions of entrusting controversial decisions to a direct vote of the People are obvious. The marriage equality referendum, like the Scottish experience, certainly seemed to encourage a very positive and democratically-heartening level of civic participation from individuals and groups (especially the young) who are often less engaged in ‘normal’ elections.

Equally obvious, however, are the potential difficulties with this approach to constitutional reform, especially on issues of rights or which may have specific relevance or impact for minorities. It was, after all, the referendum as a vehicle for constitutional change that gave us both Ireland’s marriage equality vote and California’s Proposition 8.

This raises more complicated questions about the social, symbolic and empirical influence of a referendum as part of a process of constitutional change. Does the referendum provide a better means of embedding and legitimising a constitutional change with social or moral dimensions than the decision of a court? Should we expect Obergefell (following the experience of Roe. Wade) to encounter greater resistance over time than may be the case with the Irish change? If it does, is that a product of the method of introducing constitutional change or of deeper cultural, social and political differences between the US and Ireland? Or are there differences in the character and public perception of the marriage and abortion issues that would account for any variation?

From a purely legal perspective, another matter worth considering is whether the potential for a referendum may influence the behaviour of judges, especially when facing litigation raising contentious social issues. In a challenge to Ireland’s then-marriage laws, for example, the High Court delivered a decision based primarily on the Court’s acceptance of the Civil Registration Act 2004 as “an expression of the prevailing view as to the basis for capacity to marry”. This reluctance to interfere in areas which the Court regards and expressly acknowledges as matters of social or public controversy can be seen in other recent Supreme Court decisions (for example) on the laws regulating the age of consent for sexual intercourse, on the right to die and on surrogacy. It is plausible – if speculative – that one factor in this approach may be judicial knowledge that it is relatively easy for any perceived constitutional difficulties in legislating on these matters to be dealt with by way of referendum if the government of the day so desires. What that leaves open, however, are questions about whether questions of constitutional rights (in particular) should be dealt with in such a fashion; and what the court should do if the political class omit to take any steps to address the issue over a prolonged period of time. The answer to these questions may vary according to legal and political culture or specific institutional processes. That the mere presence of a referendum option within a system may produce such secondary consequences makes a point, however, about the complexities of constitutional change; and of the necessity to take account of such potential democratic, institutional and behavioural implications when considering the use of more directly democratic techniques.

Eoin Carolan is Senior Lecturer at the Sutherland School of Law, University College Dublin and Ireland Correspondent for the UKCLA Blog.

(Suggested citation: E. Carolan, ‘Some Lessons from Ireland’s Marriage Referendum?’ U.K. Const. L. Blog (8th Dec 2015) (available at https://ukconstitutionallaw.org/))