25 May 2015

Voting for Equality

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.

1 comment:

Anonymous said...

*Research hat on*

Under the Irish Constitution adopted in 1937, there was a particle article (Article 41) which, in accordance with Catholic social teaching of the time, defined the rights of the family which was described as the foundational social unit.

This article had been amended in a previous referendum since the original version specifically stated that marriages could not be dissolved.

Text of the article is as follows:

Article 41

1.1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

1.2 The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

2.1 In particular, 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.

2.2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

3.1 The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

3.2 No law shall be enacted providing for the grant of a dissolution of marriage.

3.3 No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.