In the face of political inaction, it is up to us to back the rights of minority groups
Published 12/05/2015 | 02:30
The closer the referendum on marriage equality comes, the more uncomfortable I get with the notion of voting on other people's right to marry - not because I don't support the measure, or think the vote will fail, but because I don't believe the rights of minorities should be the subject of a popular vote.
Some will say that contention is an attack on democracy, that the people should have a right to decide at the ballot box if marriage equality is extended to same-sex couples. Well, how would you feel if the country was engulfed in a heated debate about the morality, or lack thereof, of your personal life that culminated in strangers deciding your right to marry?
A number of LGBT campaigners have commented on how strange it feels to knock on doors, when they canvass, and essentially ask the people they meet for their permission to marry. They have also remarked on how hurtful it is to have doors slammed in their faces and homophobic abuse hurled at them as they are told to leave.
Would you feel comfortable going door-to-door, begging, cajoling and pleading with the people you meet to be extended the same rights they currently enjoy? How would you feel approaching those doors not knowing if the people you meet were going to be supportive or abusive - bracing yourself every time someone answers for the possibility that they find you, by virtue of your sexuality, disgusting?
How would you feel wondering if your fellow citizens were going to use the referendum as an opportunity to lash out against the Government, using your right to marry as a weapon? How would you feel knowing that tens of thousands of people out there probably support marriage equality but don't care enough about it to bother to exercise their vote?
How would you feel waking up the day after the referendum to find that it failed or had passed, but by a very narrow minority, meaning that lots of people out there don't want you to have the same rights that they enjoy. That they want you to remain unequal, marginalised, an "other". People on the 'No' side will say that this kind of result should not be read as a reflection on the place of the LGBT community in our society, but how else will it be possible to read it except as a resounding rejection of their right to be treated, not better, but the same?
This is why we don't usually let majorities decide on whether minorities in society should enjoy the same rights we do - because very often those majorities are either indifferent, or hostile, to those groups.
Minorities in societies are often marginalised and discriminated against precisely because of their status as "other" or "different". This is where, ordinarily, the Constitution steps in. The fundamental rights contained within it were not created in 1937, when it was enacted. Some of them, like the right to marry, are not even expressly mentioned. They inhere in all of us by virtue of our humanity.
Of all the rights that can be found within the Constitution, marriage is the only one that is denied to people on the basis of their sexuality. The reason for this, we are told, is that it has always been so. Marriage has historically always been between a man and woman and must remain so. But the longevity of a prejudice is not a rational reason for its retention.
Although the framers of the Constitution never envisaged same-sex marriage, this is because homosexuality back then was taboo, deemed perverse and immoral. But the Constitution is not frozen in 1937. It is a living document in which definitions and interpretations change in response to changing social mores.
This is why the Government's decision to hold a referendum, instead of just enacting a law, is an abdication of its responsibility to the LGBT community. It has claimed the courts would find any legislation unconstitutional, knowing that Acts of the Oireachtas have a presumption of constitutionality that is very hard to dislodge. It also knows the superior courts don't like meddling in anything that falls under the broad ambit of "social" policy, preferring to leave those matters to democratically-accountable elected representatives.
So, we have a Catch-22 - a judiciary who has decided their constitutionally mandated role to protect and vindicate rights must be constrained to the point of uselessness by their subservient attitude to the Dáil, and a Dáil that uses the excuse of the courts striking down legislation as a pretext for never doing anything that has the potential to lose it votes.
Referendums are normally held when an issue affects all, or most, of the country - to decide if we want to pass an EU treaty or abolish the Seanad. This referendum is different because it asks more than 90pc of the population to vote on an issue that will never affect them and places the fate of the few in the hands of the many.
It has also been confirmed to me by a number of different TDs that parties are simply not campaigning in rural areas, preferring to expend their efforts in liberal areas of Dublin and Cork where they're more likely to get a warm welcome. It should be noted that there are individual members of all parties who are doing Trojan work, but, having called the referendum, much of the political establishment is abandoning its responsibility to campaign for its successful passage.
In the face of political inaction, it is up to all of us to really think about what this referendum means and act altruistically. When you vote on May 22, you will be voting on the hopes, dreams and aspirations of tens of thousands of people all over the country. You will also be sending a message to the LGBT community, hopefully one that will resoundingly tell them they are accepted and respected as equals in our pluralistic Republic.