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Cathal McNaughton / Reuters People react as Ireland votes in favor of allowing same-sex marriage in a referendum, in Dublin May 23, 2015.
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There's Something About Marriage

Why the Vote in Ireland Was Bad for Same-Sex Rights

In yet another example of the apparent paradox of Catholic nations leading the world on gay rights, Ireland, a quintessential Catholic society, has legalized same-sex marriage. Before Ireland, there was Uruguay, France, and Brazil (the world’s largest Catholic nation as well as the largest same-sex marriage state) in 2013; Argentina and Portugal three years before that; and Spain, the country that inaugurated the trend of overwhelmingly Catholic nations legalizing same-sex marriage, five years before that.

When Spain’s same-sex marriage law was enacted in 2005, only two other nations, the Netherlands and Belgium, had extended to same-sex couples the right to marry, with the Netherlands having done so only in 2001. As of now, and including Ireland, 19 countries protect that right. Of the almost 600 million people who today live in nations that allow same-sex marriage, more than 60 percent are in Catholic-majority nations—and that tally does not even include the “mini” state of Mexico City, a metropolis of some 20 million people, which legalized same-sex marriage in 2009, or Bolivia, Chile, Colombia, and Ecuador, which allow for same-sex civil unions with benefits that are very similar to marriage.

Men walk past Yes Campaign graffiti in central Dublin as Ireland holds a referendum on gay marriage, May 22, 2015.

Men walk past Yes Campaign graffiti in central Dublin as Ireland holds a referendum on gay marriage, May 22, 2015. 

To explain why Catholic-majority countries such as Ireland have embraced gay marriage, commentators have typically pointed to the decline of the Catholic Church’s moral and political authority across the Catholic world. In Ireland, it came as a result of sex and child abuse scandals; in Spain and Latin America, because of the church’s support of military regimes with reputations for wanton human rights abuses, including the disappearance of left-wing dissidents. But this is only part of the story. Polling data also suggest that Catholics, as a religious group, are more accepting of homosexuality than Protestants and Muslims.

According to Pew: “On average, Catholics are less morally opposed to abortion, homosexuality, artificial means of birth control, sex outside of marriage, divorce and drinking alcohol than are Protestants.” It is further noted that: “The differences between Catholics and Protestants on most of these issues hold true even when accounting for levels of religious observance. For example, Protestants who participate in religious services at least once a week are somewhat more likely to oppose abortion and divorce—and considerably more likely to oppose homosexuality, sex outside of marriage and drinking alcohol—than are Catholics who attend Mass at least weekly.” Certainly, it isn’t unusual that an overwhelmingly Catholic country such as Ireland decided to back same-sex marriage. 

What is unusual about Ireland, however, is the process through which the country settled the matter—not through the courts and the legislature, but via a national poll. In doing so, Ireland has claimed the title of the world’s first country to gain same-sex marriage by popular demand. This is, arguably, a dubious honor. As I wrote in the pages of the Irish Times,Although inspiring, Ireland’s referendum is not a step forward for gay rights.” There is, in fact, something unseemly about a nation putting the civil rights of a historically oppressed minority (it is worth remembering that homosexuality was regarded a crime in Ireland as recently as 1993) to a popular vote. Most civilized nations would never conceive of putting the rights of racial and ethnic minorities to a vote, so why should sexual minorities endure that indignity?

A CYNICAL HISTORY 

No other country’s experience best suggests the dark side of gay rights referendums than that of the United States, where foes of the gay community have perfected “letting the people decide” as a cynical tool for denying gay people their rights and for stopping the gay rights movement in its tracks. That ignominious experience goes all the way back to 1977, to the infamous Dade County, Florida, referendum on an ordinance passed by the county that banned discrimination on the basis of sexual orientation. Anita Bryant, a former beauty queen and spokeswoman for the Florida Citrus Commission (and hence Ms. Bryant’s moniker as “the Orange Juice Queen”), spearheaded the referendum drive, which she ominously named the “Save Our Children” campaign. After a bitter political fight in which Bryant succeeded in depicting gays as pedophiles and predators, the repeal of the ordinance passed by almost 70 percent. The defeat encouraged groups in other cities (including St. Paul, Minnesota; Eugene, Oregon; and Wichita, Kansas) to overturn their own antidiscrimination ordinances, a major setback for the nascent gay rights movement.

The infamy that surrounds gay rights referendums begs the question of why the Irish would choose a popular poll to settle the issue of same-sex marriage.

By 2004, Republican operative Karl Rove cynically managed to put a same-sex marriage referendum on the ballot in ten states, including the all-important swing state of Ohio. He hoped to gin up support for George W. Bush’s reelection campaign by motivating so-called value voters. The gay community was more than a little incensed at the idea that the public should have any say in whether or not a gay person could marry the person of his or her choosing. In subsequent years, that first wave of gay marriage referendums launched a tsunami of similar votes, with some of them, such as those of Texas and Virginia, so sweeping in their scope and mean-spirited in their purpose as to prevent the creation of domestic partnerships intended to grant same-sex couples hospital visitation rights. According to the gay rights lobby Human Rights Campaign, the nationwide average vote percentage for the 30 same-sex marriage referendums enacted in the United States since Alaska’s ban was approved in 1998 is 67 to 33 percent, although in the South the average is considerably higher—75 to 22 percent.

Of all the same-sex marriage state bans implemented in the United States, the most heartbreaking (at least for the gay community) was California’s Proposition 8 campaign, not least because it overturned an existing same-sex marriage law. But that was just the beginning. “Prop 8,” scheduled to coincide with the 2008 presidential campaign, left in its wake a terrible legacy for the gay community, the state of California, and the United States as a whole—it defamed homosexuals as a menace to society and “worse than Germany’s Third Reich,” according to a Prop 8 coordinator; it left in legal limbo thousands of same-sex marriages; it tarnished the historical occasion of the United States having elected its first African American president. 

Oddly enough, in an act of poetic justice, the victors in the Prop 8 fight have fared worst. After public opinion turned in favor of same-sex marriage, those who supported the referendum have found themselves fending off characterizations as retrogrades and bigots. Having lost the same-sex marriage war, the backers of Prop 8 are now demanding the right of florists, bakers, and photographers to refuse to provide their services to gay nuptials on the grounds that participation in such nuptials violates their deeply held religious beliefs. It’s hard to see what good, if any, came from this sordid experience.

There is something unseemly about a nation putting the civil rights of a historically oppressed minority to a popular vote. Most civilized nations would never conceive of putting the rights of racial and ethnic minorities to a vote, so why should sexual minorities endure that indignity?
Cathal McNaughton / Reuters A same-sex marriage supporter poses for a photograph at Dublin Castle in Dublin, Ireland May 23, 2015.

CONSTITUTIONAL UNCRISIS

The infamy that surrounds gay rights referendums begs the question of why the Irish would choose a popular poll to settle the issue of same-sex marriage. According to conventional wisdom, consulting the public on same-sex marriage was the only way to prevent same-sex marriage from being declared unconstitutional, since the constitution did not provide for same-sex marriage, a point that was stressed to me repeatedly by readers to my article in the Irish Times. I am not an expert on Irish constitutional law, but this reasoning strikes me as unconvincing. After all, Irish politicians had previously rejected a referendum on the issue because they feared it would prove too divisive, and instead decided to pass a same-sex civil unions law, enacted in 2011.

Moreover, it helps to think comparatively. In some countries, political leaders have deliberately refrained from allowing gay marriage referendums because they recognize that despite the appearance of being a democratic way to decide a contentious issue, gay rights referendums are actually demeaning to a democratic society. The most memorable example of a politician opposing such a vote on moral grounds is that of Argentine President Cristina Fernández de Kirchner. In 2010, she squelched any talk of a referendum on a same-sex marriage bill that was about to be debated by the Argentine National Congress. “It is unbecoming,” she said, “of a democracy to put the rights of a minority to the whims of the majority.” In the end, the Congress approved the bill.

At the same time, most states have legalized same-sex marriage without a provision in their constitution explicitly allowing them to do so. In fact, save for perhaps the Constitution of the Republic of South Africa, which was written after the dismantling of apartheid to ban virtually all kinds of discrimination, including discrimination based on sexual orientation, most of the world’s constitutions do not envision same-sex marriage. Unsurprisingly, constitutional challenges to bills mandating same-sex marriages have become a matter of course in many countries, with all the ones of which I am aware unsuccessful.

Let us hope that Ireland’s referendum is one example of settling gay rights that we will not see repeated anytime in the near future. The best-known case is Spain, where the 2005 same-sex marriage law survived a 2012 test by the Constitutional Tribunal. A conservative government had come into office pledging to overturn the law and arguing that it had “denaturalized” marriage as defined in the Spanish constitution as the union of a man and a woman. In the end, the tribunal refused to hear the appeal, leaving the same-sex law intact. In 2010, the Mexican Supreme Court reaffirmed as constitutional the legalization of same-sex marriage and adoption by Mexico City officials, after the conservative administration of Mexican President Vicente Fox initiated efforts to stop gay marriage in the Mexican capital on the grounds that the country’s constitution does not allow it, which were subsequently picked up by President Felipe Calderón. Curiously, the Mexican justices cited American jurisprudence, especially Loving v. Virginia, the landmark case that ended the ban on interracial marriage in the United States, to justify their legal reasoning. 

Just before France’s 2013 same-sex marriage law went into effect, the law was blocked by a constitutional challenge from conservative legislators, but the country’s highest judicial authority, the Constitutional Council, upheld the law, ruling that same-sex marriage “did not infringe on basic rights or liberties or national sovereignty.” Conservative politicians in Brazil are currently challenging the Supreme Federal Court’s 2011 decision that opened the way for same-sex marriage, arguing that the Brazilian constitution recognizes only heterosexual marriages. This challenge is not expected to go anywhere. In sum, it is not unthinkable that a same-sex marriage law in Ireland could have survived constitutional scrutiny, just as similar laws have in other countries.

In fairness to the Irish, one big difference between Ireland and Argentina, Mexico, and Spain is the liberalism of the courts. Largely because of the latter countries’ recent experience with military dictatorship and the horrendous legacy of human rights abuses, the courts in Latin America and Spain have been extraordinarily receptive to arguments made by gay activists that “gay rights are human rights.” Additionally, and also in contrast to Ireland, anticlericalism runs deep in the political culture of Latin America and Spain. Latin American politicians have eagerly embraced “marriage wars” to bash a once powerful Catholic establishment. Argentina’s Kirchner took on Buenos Aires Archbishop Jorge Mario Bergoglio (now Pope Francis) for his depiction of gay marriage as “an attack on God’s plan and the devil’s project.” In a famous putdown, the president noted that Bergoglio’s words were “reminiscent of the Inquisition.”

Temistocles (L) and his partner Daniel celebrate after getting married at the town hall in Mexico City March 11, 2010.

Temistocles (L) and his partner Daniel celebrate after getting married at the town hall in Mexico City March 11, 2010.

After Cardinal Juan Sandoval Íñiguez, archbishop of Guadalajara, labeled the legalization of same-sex marriage and its adoption by Mexico City “an aberration” (he then asked, “Would you want to be adopted by a pair of faggots and lesbians?”) and accused Mexico City Mayor Marcelo Ebrard of bribing the Supreme Court, Ebrard filed a defamation suit against the Catholic Church and chastised Íñiguez for failing to grasp that there is separation of church and state in Mexico: “We live in a secular state, and in it, whether we like it or not, the rule of law prevails; the Cardinal must obey the law like any other citizen of this country.” The cardinal was censured by the Supreme Court in a unanimous decision supported even by the dissenting justices on the legalization of same-sex marriage.

FIGHTING IRISH

It seems that Irish politicians did not have the stomach for a political brawl and a protracted legal fight over same-sex marriage of the likes seen in Latin America and Spain and that they instead chose the least confrontational but most morally suspect path, which is understandable given Ireland’s history of civil and political conflicts. Moreover, Ireland is a peculiar place, a point underscored by the fact that virtually the entire Irish political class was fully united behind the “Yes” campaign, making the outcome of the referendum certain, if not preordained. To their credit, those manning the “No” campaign resisted the temptation to demonize the gay community, which has not been the case in the United States. Actually, the losing side has been very gracious in accepting defeat. Signaling a willingness to reflect and move on, Dublin Archbishop and Primate of Ireland Diarmuid Martin noted that “we [the church] have to stop and have a reality check, not move into denial of realities.”

All of this said, it is difficult to escape the conclusion that although things could have gone tragically wrong, things have instead played out very well in Ireland for the government, the LGBTQ community, and the nation as a whole. The triumph of the “Yes” campaign appears to be one not just for the gay community but for Ireland as a whole. Marriage equality is rightly held as a milestone in Irish history, a monumental achievement in the country’s social and political development, and a repudiation of the Catholic Church’s outmoded views on homosexuality. So we can rejoice in the outcome while decrying the process by which this outcome was attained. But just because the gay marriage referendum worked well for Ireland does not mean that it should be emulated by the rest of the world. Let us hope that Ireland’s referendum is one example of settling gay rights that we will not see repeated anytime in the near future.

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