Dr Martin Mansergh
Martin Mansergh, The View
A distinctive feature of Irish democracy has been frequent recourse to referendums. Voting in a referendum is an exercise of the sovereignty of the people. Its origin may partly be traced to the unhappy Treaty split, which led, in Yeats’ words, to so much ‘wasted idealism’ during the civil war. Éamon de Valera felt strongly that future decisions on fundamental questions required more than a parliamentary majority.
Today, the people make the ultimate decision on three types of question. The first relates to the structures of our democracy, such as the electoral system, the courts, the Seanad, and the Presidency.
The second involves changes to concepts of sovereignty vis-à-vis the island of Ireland and the European Union. The third is socio-moral questions, such as the rights of the child, abortion, divorce, and the scope of marriage.
People appreciate constitutional safeguards, despite disagreement as to where they should be placed. It is always a challenge to reduce complex issues to simple guiding principles capable of a ‘Yes’ or ‘No’ decision, taken by people not parties.
Some outcomes in the first and third categories have been revisited after 10 years, such as the electoral system, divorce and abortion, with varying results. EU treaty change is different, because it requires unanimity among member states. It is effectively a two-stage process.
Problems
If only one or two member States have problems, an effort is made to meet their concerns and to unblock ratification, without reopening everything, allowing, in our case, a referendum re-run. Difficulties here and elsewhere have made EU leaders reluctant to pursue further treaty change. Frequent referendums have strengthened the democratic legitimacy of the EU in this country, and we have no equivalent of UKIP (yet).
Provided accepted democratic norms are respected, changes to our political structures and our socio-moral choices are matters for ourselves to decide. There is little basis for the claim that if we fail to vote for same-sex marriage severe damage will be done to our reputation abroad. Of our EU partners, roughly one third have adopted it.
Amongst predominantly Catholic countries, Spain and Portugal have gone down this road; Austria, Italy and Poland have not. The Northern Ireland Assembly resists following the rest of the UK. Unionist opposition is hardly attributable to Catholic values.
A referendum asking the people to decide whether marriage can be redefined to include same-sex couples is far preferable to some implausible reinterpretation by the courts of Article 41 in the Constitution relating to marriage, “on which the family is founded”, and which the State pledges itself to protect.
The 1992 Supreme Court judgement in the ‘X’ case has never been accepted by pro-life groups.
The requirement for a referendum also precludes a situation, where a smaller party would make legalisation of same-sex marriage a condition of government participation.
Interestingly, in Germany the larger Christian Democrat party, which appeals to those who still cherish Christian beliefs and traditions, has declined to convert civil partnerships into marriage, and their Social Democrat partners in government have reluctantly accepted this.
There is no legal inequality, but a symbolic adherence to marriage as long defined is maintained.
Here, claims made about this being both a human rights issue and an equality issue deserve critical scrutiny.
Care should be taken not to over-extend the definition of human rights, which override democracy, and which can only be adjudicated on in the courts. In this instance, the people are being asked to confer the right to marry on two persons of the same gender, so as, it is argued, to establish marriage equality, despite obvious differences in situation.
There should be balanced debate, and less groupthink, despite obvious impatience in sections of the media no longer keen on the McKenna judgment.
Most young couples marry to enable them to start a family within a framework that affords maximum legal protection at a time of vulnerability with small children.
While not all marriages involve children, a co-director of the marriage equality campaign quoted in Una Mullally’s In the Name of Love acknowledges “the reality is, it’s a small minority of same-sex couples who have kids”.
Pending changes in adoption law may gradually alter this, but the question now is whether a mainly adult partnership should be assimilated to what is, particularly during children’s formative years, more a family relationship, or whether they should be respected as different.
While the ideal upbringing involves a father and a mother, they can sometimes fail, and where the ideal is unavailable, others, singly or together, do their best, leading to a diversity of family situations.
The Department of Social Protection actually disincentivises recipients of single-parent payments from acquiring a partner that might help with parenting.
No one wants to succour prejudice. We should value couples willing to devote themselves to each other long-term, regardless of gender sameness or difference.
Legal rights and protections have been put in place, and public attitudes today are more disposed to inclusion than exclusion,so a huge song and dance about public figures ‘coming out’ should not be necessary.
We do not live in a country of rigid separation between Church and State, and such rigidity creates its own problems.
There is seldom acknowledgement coming from most advocates of change that what they seek goes against religious teachings and beliefs about the good of society.
Sexuality
On the other hand, those who hold to the Christian ideal of marriage need to explain better how it will be undermined if civil partners are allowed to marry, and how, if people’s sexuality is a given not a choice, the great majority of people will be affected.
Despite past intolerance, courtesy, forbearance and a willingness to listen should be shown on all sides. It will be for many conscientious voters who take part a difficult and finely balanced decision.
No one should be under any illusions, however. The referendum is a dry run for a sequel, the repeal of the eighth (pro-life) amendment, if politicians need no longer fear religious factors weighing on voters.
