I will confess that I felt the same sense of elation as so many others, tinged with a great deal of relief, when the Irish electorate voted decisively to enshrine marriage equality in the country’s constitution. I can’t help wondering, though, what negative effects this might have on other fights for equality, for access to the protections and services our modern societies provide for their citizens. It’s about a majority having the power to determine the level of protection it will afford to a minority. That’s a scary power.
That 62-38% result is pretty stark on the face of it, and very affirming for LGBT Irish people. I’m sure they all had their classic Sally Field at the Oscars moments after the results were announced Saturday: “You like me, you really like me!” While I’m not trying to be Debbie Downer (I guess it just comes naturally), the variations start to point to the problems. Does it mean something different to live in an area that voted over 70% “Yes” as opposed to one where the “Yes” just squeaked through? And considering the turnout of about 61%, even a county that voted 70% for the amendment didn’t actually have a majority of the eligible voters in favour (70% of 61% is less than 43%).
A single county had a “No” majority and as others in the country point an accusing finger at them, they stiffen their opposition, insisting on their democratic right to have voted the way they did. So they had a right to deny my rights?
I do recognize that the Irish situation was different from many. That they had to make a change to their constitution probably means that there was some “traditional” homophobia already enshrined there (and not knowing if that was the case is my great shame as a “researcher”). If there is a prescribed way to change a constitution, you can’t really get around that without becoming lawless, so I’ll grant the necessity of the vote in that sense.
You will hear right wingers in the United States shout for measures like marriage equality to be put to a popular vote, and that is precisely because they have a certain confidence that they can sway the majority to vote their way. Heck, if it can happen in hippie-dippie California, how would the vote turn out in Texas, or Alabama? I think we know the answer to that. In California, it took the courts to undo the discrimination and to tell the population and the legislators that they aren’t allowed to discriminate against that minority. When the legislators lack the courage or principles to protect the basic rights of the few from the will of the many, it becomes the role of the courts to make them do it.
Human rights legislation generally is meant to protect a despised minority from the will of the majority. That might sound a little extreme, especially in this context where the minority doesn’t seem to be all that despised after all, but it truly is the measure of the success of such protections. If an unpopular minority cannot be discriminated against because of the intercession of human rights protections, those protections are working.
If those protections are to be decided upon by the majority, they risk ending up meaningless.