—Scott Stephenson, Melbourne Law School
The significance of Ireland’s recent referendum on same-sex marriage extends well beyond its borders. The result, in which a majority of voters approved an amendment to the Irish Constitution allowing two persons to marry without distinction as to their sex, has sparked a flurry of debate and legislative activity in Australia. The country is, in some respects, well positioned to follow Ireland’s lead given that same-sex marriage is not yet legal and amendments to the Australian Constitution also require approval at a referendum. However, suggestions in Australia that a referendum should be held on same-sex marriage have been given very short shrift by most politicians and academics. The issue of same-sex marriage in Ireland and Australia thus serves to highlight how a referendum procedure can come to serve different purposes in a constitutional system and, more broadly, to signify points of divergence between constitutional cultures.
The decision to hold or not to hold a referendum on same-sex marriage
The Irish government formed the view that an amendment to the Constitution, and thus a referendum, was necessary to legalise same-sex marriage. In 2013, Alan Shatter, the Minister for Justice and Equality, stated that ‘[t]he clear position arising from case law in Ireland — and there is ample case law to this effect — is that marriage is understood as being between one man and one woman, ideally for life’. Shatter arguably overstated the certainty of this position. Prior to the referendum, the Supreme Court had not ruled on whether the state’s duty to guard ‘the institution of marriage’ in Art 41.3.1⁰ of the Constitution included same-sex marriage. Conor O’Mahony, Brian Tobin and Eoin Daly had pointed to a number of factors, including lower court decisions and the Supreme Court’s approach to constitutional interpretation, suggesting that the Oireachtas had the power to extend the definition of marriage to include same-sex couples without constitutional amendment. In any case, the Oireachtas decided to settle the issue at a referendum. When the Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015 came before the legislature, the four main political parties supported it.
In Australia, a greater degree of latitude was afforded to legislators on the issue.
In 2013, the High Court held that Commonwealth Parliament’s power to make laws with respect to ‘marriage’ under s 51(xxi) of the Constitution ‘includes a marriage between persons of the same sex’. Following this decision, it became clear that Commonwealth Parliament could resolve the matter by itself through the ordinary lawmaking process or by putting it to the people at a referendum via a proposed amendment to the Constitution. Although legislators had a choice as to how to proceed, the three main political parties quickly rejected suggestions that a referendum should be held on same-sex marriage following the events in Ireland. Only a few politicians, most of whom are independents or belong to a minor party, expressed support for the contrary view. As a result, proposals to legalise same-sex marriage have come to focus on the passage of an Act of Parliament.
Reflecting on the different attitudes toward a referendum
Australia’s reluctance to hold a referendum on same-sex marriage is in part driven by pragmatic considerations. Why go to the effort and expense of holding a referendum on an issue that can be determined without one? George Williams has argued that it would amount to little more than ‘essentially a big opinion poll’. Yet the prevailing view on the matter is also a product of the country’s constitutional culture, specifically its deep ambivalence about using the Constitution as a source and embodiment of society’s values and principles. Unlike many other countries, the Australian Constitution, which was enacted in 1901, does not contain a bill of rights and is devoid of soaring rhetoric about the country’s history, foundation, aspirations and people. Importantly, it has steadfastly remained that way over the course of its life. Through the referendum procedure, the Australian people have rejected attempts to bolster the Constitution’s protection for rights (in 1944 and 1988) and to introduce a preamble outlining society’s values and principles (in 1999). The considerable difficulties facing the current efforts to make even modest amendments to the Constitution to recognise indigenous persons as the first inhabitants of Australia and to prohibit discrimination against them are yet another illustration. The reluctance to hold a referendum on same-sex marriage aligns with this trend, as it would amount to an attempt to include an implicit or explicit reference to some notion of equality in the Constitution.
Ireland’s position stands in stark contrast to that of Australia. The Irish Constitution, which was enacted in 1937, contains a bill of rights, a set of directive principles of social policy that the Oireachtas is supposed to promote, and a preamble setting out the history, foundation and aspirations of ‘We, the people of Éire’. Importantly, through the referendum procedure, the Irish people have updated their Constitution to reflect changes to the stated values and principles, approving amendments on a regular basis in a diverse range of areas, including on the voting age, religion, abortion, divorce, the death penalty and children. The referendum on same-sex marriage is the latest episode in the Irish people’s continuing engagement with, and commitment to, the Irish Constitution as a source and embodiment of society’s values and principles. Indeed, the process by which the referendum came to pass underscores this relationship. The referendum on same-sex marriage was a response to a 2013 report of the Convention on the Constitution, which was a body established in 2012 to discuss a number of proposed amendments to the Constitution. It was a deliberative body that brought together the public and political elites, comprising thirty-three politicians and sixty-six randomly selected citizens. At the referendum, voter turnout was more than 60%, with thousands of Irish people returning home to vote.
The issue of same-sex marriage thus highlights how referendums can be an element of, and a contributor to, different constitutional cultures. Australia’s referendum procedure has produced an exceptionally stable constitutional document, having been amended only eight times in over a century with the majority of those amendments being minor in nature. The referendum’s double majority requirement has helped to preserve the constitutional status quo — to succeed, an amendment must be approved not only by a majority of voters, but also by a majority of voters in a majority of Australia’s six states. The high threshold for success has assisted in keeping values and principles out of the Constitution.
By contrast, the Irish experience demonstrates that a referendum procedure need not lead to constitutional stasis. Indeed, the referendum has helped establish the Constitution as an active site for debates about society’s values and principles. It ensures that efforts to change the Constitution’s original statements of values and principles are not confined to the political class, but instead directly involve the entire electorate and thus take on the stature of a major political event. It arguably facilitates action on controversial issues because it allows politicians to transfer ultimate responsibility for the outcome of decisions to the people. Ireland’s referendum on same-sex marriage is, therefore, not only significant for being the first time a country has put the issue to a popular vote, but also for signalling the deeper connections between referendums and constitutional culture, especially when placed in comparative perspective.
Suggested Citation: Scott Stephenson, The Constitutional Referendum in Comparative Perspective: Same-Sex Marriage in Ireland and Australia, Int’l J. Const. L. Blog, June 4, 2015, at: http://www.iconnectblog.com/2015/06/the-constitutional-referendum-in-comparative-perspective-same-sex-marriage-in-ireland-and-australia