Referenda are risky and expensive ventures that can place the rights of minorities in the hands of majorities. Before Australia embarks on a same-sex marriage plebiscite, it would do well to take a look at Ireland’s move to equality, Brian Tobin writes.
In 2015, Ireland made history by becoming the first country in the world to legalise same-sex marriage by means of a popular vote, following the success of the Marriage Equality Referendum. However, despite the positive outcome, having recourse to a referendum as a means of legalising same-sex marriage should not be viewed through rainbow-tinted spectacles.
Irish politicians had the option of legislating for same-sex marriage without holding a referendum, just as Australian politicians currently can. This was apparent from an Irish High Court decision from 2006, and in 2013 the Australian High Court also made it abundantly clear that the federal Parliament can bring about marriage equality. The reason the issue was put to a popular vote in Ireland is because same-sex marriage is a veritable political hot potato. None of Ireland’s political parties were keen to champion its introduction for fear of a backlash.
Although Ireland’s referendum was successful, leaving a human rights issue like marriage equality to be decided by a national vote is crude and uncertain. It forces an historically oppressed minority to have to plead with the majority to grant them access to marriage in the months prior to the national vote. The Irish “Yes” campaign mobilised extremely well and had its members knocking on doors in neighbourhoods throughout the country, but it meant that gay and lesbian people were reduced to “begging” for Irish society’s approval of their intimate relationships.
Referenda are also extremely risky ventures. Referenda on controversial issues have failed in Ireland. It took two attempts to legalise divorce – a referendum in 1986 that failed and a second referendum in 1995 that passed by 51 per cent to 49 per cent. Placing the rights of a minority group like the LGB community in the hands of the majority seems almost ludicrous. A sizeable number of the electorate could simply vote against same-sex marriage without being properly informed in the way elected politicians would usually be when legislating.
Referenda and plebiscites also provide a platform for those opposed to marriage equality to misinform the public about the issues and air homophobic views – this happened in Ireland where anti-LGB views were widely shared in the months prior to the referendum. One can only imagine the effect the misinformation and scaremongering had on LGB citizens, let alone the profound sense of very public rejection they would have felt if the majority of voters had voted against the proposal.
Homophobia raised its head in every possible way. It was even dressed up as a concern for democratic process when opponents of marriage equality castigated progressive legislation introduced by the Irish Parliament prior to the referendum to regulate assisted reproduction, adoption and parental rights for same-sex couples. The legislation had been in the works for fifteen months, since January 2014, and it had been thoroughly scrutinised by experts prior to its passage through parliament to ensure that it complied with international best practice. Despite this, it was claimed the legislation had been “rushed through” when enacted in April 2015, six weeks before the referendum was held.
Nonetheless, in Ireland the successful referendum result had a very significant impact – it led to constitutional protection for same-sex marriage. Article 41.4 was inserted into the Constitution of Ireland and provides that marriage may be contracted in accordance with law by two persons without distinction as to their sex.
In Australia, a successful result in a plebiscite does not guarantee that the law will subsequently change to embrace marriage equality because the result is non-binding – a plebiscite is but a national opinion poll. Thus, the price tag associated with the plebiscite ($160 million) seems extraordinarily high given the uncertainty surrounding what might happen following a successful result.
A constitutional referendum on the issue that would enshrine a definition of marriage in the Australian Constitution akin to that endorsed by the High Court in 2013 seems like a better use of public money and would lead to a more certain outcome for same-sex couples.