The consequences of Ireland’s Vote for Equality

31 May 2015 by

CFuJJAyXIAAMQIdLast week the people of the Republic of Ireland voted in a referendum to amend its constitution to allow marriage by two persons “without distinction as to their sex” by 62 – 38%.

The exuberance of the moment was captured by a tweet from the Irish Minister of State for Equality, Aodhán Ó Ríordáin TD stating, “Ireland hasn’t just said “Yes” Ireland has said “F❤CK YEAAHHHH”

The media was awash with celebratory images. Prominent in these were two Irish Senators who played their part by bringing test cases. Decriminalisation had only come about in Ireland in 1993 after Senator David Norris had challenged the previous discriminatory law in the European Court of Human Rights and won (in 1998) with the assistance of his Counsel, then Senator and subsequently President Mary Robinson.

The recognition of same sex partnerships in Ireland really came to prominence when Senator Katherine Zappone sought recognition of her Canadian marriage (with Ann Louise Gilligan) within the tax system. The High Court ruled that the constitution defined marriage as being between a man and a woman and the stage was set for battle to commence. In the meantime the government had started to take evasive action and defined marriage in the Civil Registration Act 2004 as being between a man and a woman (it was previously undefined). This was the year that the UK Parliament passed the Civil Partnership Act – which covered Northern Ireland. In 1998 the Irish Government in the Belfast Agreement committed to bringing,

measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland.

This meant that the Republic had to act and in 2010, the government in Dublin brought into effect the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. This did not precisely replicate the rights and obligations for same sex couples and in the 2011 election the Irish Labour Party pledged in its manifesto to hold a referendum on same sex marriage. After they went into coalition with Fine Gael, this step was also recommended by a Constitutional Convention

The referendum was closely contested. The Yes Campaign had all party support but what really mattered was the ground war led by rights groups such as Amnesty Ireland. This was accompanied by a remarkable campaign in social media emphasizing personal stories and culminating in the use of the hashtag #hometovote accompanying pictures of young people arriving back at Ireland’s Ports and Airports in time for the referendum.

This is all too readily idealised. It should be appreciated that door to door canvassing, asking for the support of heterosexual Ireland for a Yes Vote was stressful and, at times, demeaning. Ironically this was captured in one of the Yes Campaign’s most succesful tools – a video on Youtube showing a heterosexual man going door to door asking the permission of everyone to marry Sinead.

The campaign had its jitters too – especially with the release of the Ashers Bakery Judgment (AKA “gay cake”) in Belfast which many believed would sidetrack the referendum debate onto freedom of conscience issues as in some US states – most recently in Minnesota. After the experience in France, the Irish government cleverly separated out the question of adoption rights by enacting the Children and Family Relationships Act in advance of the referendum. This gave cohabitating couples and those in civil partnerships full adoption rights. More mischief was created over surrogacy. The government have agreed to legislate in this area now the referendum is over.

What is the significance of the referendum?

For Ireland, the immediate consequence is that legislation should be in place by July 2015. There is a three month notice period for civil marriages in Ireland so it may be more realistic to contemplate the first same sex marriages taking place in the Autumn. There will be no new civil partnerships – existing partnerships will become a legacy category.

It is striking that in the aftermath of the result both Leo Varadkar, Ireland’s first openly gay minister and Archbishop Martin of Dublin both used the phrase “social revolution” to describe what happened. However, despite pressure, An Taoiseach Enda Kenny ruled out an early referendum on abortion. Again, it has to be remembered that such a move would entail a door to door conversation about some of the most difficult ethical issues one could imagine.

The shocked reaction that this took place in Catholic Ireland is somewhat surprising when one considers the pioneering role played by Catholic Belgium, Spain, Portugal and Argentina in introducing same sex marriage

Ireland was the first country in the world to introduce same sex marriage as a result of a referendum. By contrast, on 1 December 2013 a referendum in Croatia amended the constitution to outlaw same sex marriage and Slovakia only failed to follow on 7 February 2015 because of a low turnout in its referendum. Will it have an effect outside the Republic?

Ireland is now the eleventh member state of the EU to approve same sex marriage (if the absence of SSM in Northern Ireland doesn’t disqualify the UK). The effect of the referendum has highlighted the absence of the same in Germany and appears to have stimulated the Italian government in increasing its efforts to introduce a Civil Union scheme in Italy.

The reverberations were felt most strongly in Northern Ireland where the Assembly rejected same sex marriage for the fourth time on 27 April 2015 by 47 – 49. In fact, the margin is illusory as the DUP would use a petition of concern to block such a change even if it had the support of a majority of MLAs. An Opinion poll in 2014 showed the public there to be equally divided on the question. This may have shifted since the referendum. Amnesty have called for a demonstration in Belfast on 13 June. In the meantime, same sex couples who marry in the Republic will have their marriages recognised as civil partnerships in Northern Ireland. In November there will be a hearing in Belfast of a challenge by a same sex couple who married in England and want their marriage to be recognised as such in Northern Ireland where they now live. It is understood that this case will not solve many of the legal issues surrounding the regrettable fact that Northern Ireland remains the only jurisdiction in the United Kingdom and also now on the Island of Ireland which does not legislate for same sex marriage.

We hope that the inclusive, positive and inspiring campaign (Yes Equality Campaign) in the Republic will encourage Northern Irish society to mobilise and support a change in the law whether through the Assembly or our High Court.

The cultural connection between Ireland and Australia has meant that the referendum has had repercussion on the otherwise of the world – inducing a spurt of activity in Parliament and raising the possibility that Tony Abbott may allow conscience vote of his MPs.

It also represents a sympathetic backdrop to the deliberations of the US Supreme Court who heard oral arguments in April 2015 and Judgment is awaited on two questions:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

There are signs that the Irish Yeaaaah may be a tipping point in the same sex marriage debate.

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  1. cathyjuliet says:

    Actually it’s more complicated Andrew. The difference in NI is that same sex marriage is now legal in the rest of the UK therefore the challenge is stronger than it was in Zappone or in Kitzinger v AG. It’s about the rights of UK citizens within different UK jurisdictions.

  2. Andrew says:

    “In November there will be a hearing in Belfast of a challenge by a same sex couple who married in England and want their marriage to be recognised as such in Northern Ireland where they now live.”

    Was not this the very question which arise in Wilkinson and Kitzinger -v- A-G and indeed in Zappone?

    Why should the answer be different? This is a matter for the people; through Parliament in the UK, which could have but did not amend the law in NI to allow SSM, through the people in the Republic, through the Assembly in NI. Not for the courts.

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