The first gay couple got married in Ireland today following the coming into force of the Marriage Act 2015 yesterday, Monday, 16th November. The act was signed into law by the Minister for Justice and Equality, Fine Gael’s Frances Fitzgerald, and the Tánaiste, Labour’s Joan Burton, amidst much media fanfare in Dublin Castle on Tuesday last. Despite the symbolic importance of the ceremony, the Fine Gael/Labour coalition government certainly should not be lauded for bringing about marriage equality in the crude, uncertain and politically opportune manner that it did.
Marriage equality could easily have been introduced via legislation without the need for a referendum, something that the Fianna Fáil/Green Party coalition was aware of ever since the High Court’s pronouncement on this issue way back in December 2006. Afraid of losing popular support (one knows they needed it once the recession hit) that coalition legislated for civil partnership instead. The current government’s approach to marriage equality also left much to be desired. The Fine Gael/Labour coalition had the same lack of determination to tackle the issue in the Oireachtas - hence the reason it didn’t simply legislate for marriage equality - and it had recourse to a constitutional convention, a politically opportune exercise in participative democracy, before agreeing to hold the Marriage Equality Referendum in May. The constitutional convention was comprised of a chairman, 33 members of the Oireachtas and 66 ordinary citizens selected at random from the electoral register by a polling company. If the constitutional convention, a body comprised largely of ordinary Irish citizens, had not voted overwhelmingly in favour of making constitutional provision for marriage equality, the Marriage Equality Referendum would likely never have been proposed by the Fine Gael/Labour coalition whose members are now immersing themselves in the media fanfare surrounding the Marriage Act 2015. Indeed, given that marriage equality will be the only one of the constitutional convention’s recommendations to ultimately become law, one might surmise that the convention was really only set up in the first place as a politically convenient means of dealing with a controversial issue that, thanks to the relentless hard work of committed campaign groups like Marriage Equality, was never going to go away.
Thus, sending the divisive issue of marriage equality to the constitutional convention for deliberation was truly a political masterstroke. If the Fine Gael/Labour coalition had boldly announced that it was holding a referendum on the issue without any intervention from the convention, it might have lost much public support from those opposed to such a move. Instead, the government made it look as though it was giving the people the chance to ‘have their say’ through a constitutional referendum, because this is what the people, as represented by the members of the constitutional convention, had indicated that they were in favour of.
Although allowing the people to ultimately decide in a referendum as to whether marriage equality should be enshrined in the constitution was transparent (and politically convenient), it was crude to place the rights of a minority group in the hands of the majority. Indeed, the ‘No’ campaign was attempting to misinform the electorate and conflate issues. In addition, if a majority of the electorate had voted against the proposal gay and lesbian citizens would undoubtedly have felt a profound sense of public rejection. Thankfully, the referendum was successful, and the coming into force of the Marriage Act 2015 is significant for Ireland’s LGB community. However, the Fine Gael/Labour coalition government should not be lauded for bringing about either of these developments; the ordinary, compassionate people of Ireland should. If not for the recommendations of the constitutional convention, a reform-oriented forum comprised primarily of ordinary members of the electorate, marriage equality would never have become a reality in the lifetime of the current Fine Gael/Labour coalition government. The government would never have had the political backbone to hold a referendum on the issue but for the constitutional convention, and that is not to denigrate the stellar work done by various campaign groups and individuals.
In any event, a far less crude and uncertain means of legalising marriage equality would have been for the Oireachtas to legislate in that regard, an option available to it for almost a decade, since the conclusion of Senator Katherine Zappone and Dr Ann-Louise Gilligan’s High Court action in December 2006. Marriage equality is a reality at last, but no thanks to our current coalition government.
Dr Brian Tobin lectures in law at NUI Galway.