The Kindness of Strangers
Although Ireland is a democracy, many have felt for a long time it’s a de facto theocracy, slowly diminishing but very much there in the shadowy background. Since 1937 when the Irish Constitution came into being, the Catholic Church’s hold on public policy to do with family, children and reproductive rights has been pervasive.
Article 41, the one in which we just clarified the gender-neutral nature of marriage, deals with the family. It can be understood that the 1937 authors conceived family as different sex and saw no need to spell that out. Consistent with its traditional vision, Article 41 has such choice black letter language as, “the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved”.
Some of our most divisive referendums previously on abortion (1983, 1992 and 2002) and divorce (1986 and again 1995) centered on issues of family, women’s bodies and marriage.
A new wave of realization has clearly emerged in Irish public life. It may be too much to say that the wicked witch is dead; another referendum on abortion may show us otherwise. But we do know that classic scaremongering about motherless children commodified by selfish queers represents a much-diminished religious authority in the public imagination.
However, how we came to this is through a very risky strategy that advocates around the world would be ill-advised to follow.
Changes in the air
In 2007, following the Zappone case (recognition of a foreign marriage for tax purposes) there was a collective groan when the then-Minister for Justice said his Attorney General’s advice was that the only way to secure legislation for same sex marriage from constitutional challenge was to have a constitutional referendum.
That groan deepened because in almost the same breath, he said that in his political opinion there was simply no way such a referendum could possibly pass.
Many people at the time perceived we were up against the church, against European jurisprudence and against history, and we were trapped, in church parlance, in ‘limbo’. And of course, many also observed that this served as yet another political ploy to cloak protection of Catholic values in public policy.
This mobilized and simultaneously divided opinion as how to advocate for partnership and marriage rights, triggering separate campaigns that would eventually unite in 2014. One crew went in pursuit of civil partnership accepting the referendum argument; the other went directly for marriage initially favoring the legislative route.
Religious and politically conservative forces also mobilized to uphold what they see as ‘natural’ traditional family forms and family values. Through media and the political space they resisted both initiatives, appealing to a traditional Catholic constituency with fears about the ultimate dissolution of society and the eternal self.
A columnist in Ireland’s paper of record, the Irish Times recently expressed dismay about how the Irish National Teacher’s Organisation “intend to normalize same sex marriage” to children “as young as four”.
Her observation about normalizing, reveals her perception that same sex relations are not normal, and we should not teach kids it is: much like the logic that has informed ‘propaganda of homosexuality to minors’ laws in Russia, Nigeria, Lithuania and Algeria of the last two years.
It must be said that until 24 hours before the results, despite eleven years of work on this issue with an incredible surge at the end, many LGBT activists truly feared the same. Appeals to traditional family forms as being the ‘best option’ for children cast shadows of doubt on a significant percentage of undecided voters.
We were never so happy to be so wrong.
Clearly the courage of people of all ages and types making their LGBT-related personal stories public to Ireland’s small population gave meaning to our claim.
Minority rights
As advocates, States and media around the world are focusing on what just happened in Ireland, this short article recommends a note of caution. It is worth noting that it’s a risky business going to the majority to assert the minority right. What if the answer is no
Only eight countries in the world (of 193) have included sexual orientation within the ambit of their generalist non-discrimination constitutional provisions, mostly by court orders.
In Ireland, unlike many other countries, a referendum is necessary to change the Constitution, and this is what made this such a high-stakes game.
In short, it feels like we have just sat at a poker table all night, where the final stake was the house, the car and the kids.
And somehow we won.
It has been noted widely that Ireland’s was a constitutional change brought about by public vote. As an incisive 2009 campaign video describes, this meant that effectively the minority had to go to the door of every majority member’s house and ask for permission to marry the person they wish to.
While so doing, all those households were subjected to the opposition’s dystopian visions of the future through messages coded with benign hate, such as ‘Every child deserves a mother and a father’ or ‘Surrogacy: a child needs her mother for life, not just 9 months”.
Claiming that treating difference differently is not inequality when there are direct and known burdens being carried by the excluded class of person is a false paradigm worthy of Brave New World.
As a recent Guardian article observed “Here’s the thing about rights – they’re not actually supposed to be voted on. That’s why there’re called rights”. Asking the population to do the work of the courts or legislators is a great way to deflect politicians’ responsibility to lead by promoting and protecting the diversity of human rights despite populist opinion. The counter-argument to this simplistic framing is that some contentious social issues are so important that the only people who should decide on them are the people themselves.
Such is the evolution of recognition in the world, that despite the UN Secretary-General’s repeated iterations, many relatively progressive States do not accept that same-sex marriage is a human right, erroneously citing the X v Austria case to justify that claim.
What the European Court of Human Rights actually said is that it was not prepared to compel States to recognize marriage regardless of ‘sex’ at this time. The Court affords States time to figure out weighty social issues, known as the ‘margin of appreciation’. This wriggle room tends to run out.
This happened in the transgender legal recognition case in Goodwin in 2002 after 20 years of ‘grace’ and some prior cases at the Court.
The Court did not say that marriage between people of the same sex is not a human right. Opponents blatantly misinform on this issue. The Court has just not affirmed that it is a human right. Yet.
However, Europeans may be a waiting a long time as, in the 2014 Hämäläinen v. Finland case, the Court said (at paragraph 96) that Article 12 “secures the fundamental right of a man and woman to marry” and “enshrines the traditional concept of marriage as being between a man and a woman”. If this means the scope of Article 12 is inclusive of traditional marriage, or exclusive to traditional marriage is still to be played for.
One of the stunning outcomes of this Irish gamble to go to referendum is just how affirmed LGBT people feel in their own country. If we were attacked for holding hands in the street, we now know there’s a two-to-one chance that someone might come to our aid.
Not being a prayerful man, I think of the many thousands who fled this place, who contracted AIDS, who died by their own hand, who hid, who were so very frightened, broken or hurt and who still are, and I hope that the determined love so many put into this work for the future somehow answers the crimes of the past.
For Ireland, this gamble paid out.
But it does seem to be extraordinarily risky strategy to determine these rights through the kindness of strangers.
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Aengus Carroll is co-author with Lucas Paoli Itaborahy of State Sponsored Homophobia 2015: A world survey of laws: criminalisation, protection and recognition of same-sex love (Geneva; ILGA, May 2015). Thanks to George Robotham and Dr. Conor O’Mahony for inputs to this short piece.