It’s been a big weekend, with all (Western) eyes on Ireland as the country held its referendum on same-sex marriage. The referendum passed, with over 60% in favour, and the country (well, 62% of it) erupted into cheers and jubilation.
Already Irish politicians and the mainstream press are crowing about this triumph of democracy, with Irish minister Health minister, Leo Varadkar claiming that the outcome of the referendum “makes us a beacon of equality and liberty to the rest of the world.” The New York Times, meanwhile, notes that this decision “plac[es] the country at the vanguard of social change.” The mainstream media, measuring Ireland through Jasbir Puar’s notion of homonationalism (more on homonationalism here), is waxing poetic about the increased tourist dollars that this decision will bring.
Never mind that Ireland continues to deny women fundamental reproductive rights.
And never mind that the vote could well have gone the other way.
Here’s the thing: rights are rights. They should never be put to a popular vote. As a commenter on a friend’s Facebook status put it (and I’m paraphrasing here): “I shouldn’t have to ask to be equal.” Sure, the majority voted in favour of same-sex marriage.
But what if they hadn’t?
And what kind of precedent does this set for other human rights? What happens when the cause isn’t as popular, even if it is just? Will we just bow to the “will of the people” and call it just?
The thing is, the majority should never have the right to determine the rights of a minority.
Saeed Kamali Dehghan, in a commentary in The Guardian, writes:
Long before the American people would approve such marriages, it was judges who struck down discriminatory laws in various parts of America. If the majority had been asked whether white people could marry black people, it would have taken decades longer for them be able to do so. In 1967 when the US supreme court deemed anti-miscegenation laws unconstitutional, the American people were not ready for that decision.
In fact, in 1968, fully 72% of Americans felt that inter-racial marriage was wrong. Put to a popular vote, the constitutionality of those laws would not have been challenged, and given the complex and ugly histories of race in the USA, there might still be anti-miscegenation laws on the books today. After all, according to the article, Alabama only legalized inter-racial marriage in 2000.
Ireland, as much as it has finally acknowledged the rights of same-sex couples, has only just recently dipped the edge of a toenail into the realm of reproductive rights:
In Ireland, you can only have an abortion if you can prove that having the baby will make you die, either by having the baby or by killing yourself. But we saw how that law was put into practice with the Miss Y case, where a woman was on a hunger strike and tried to kill herself, and instead of letting her have an abortion, they delayed her until she was 25 weeks pregnant and then gave this just-turned-18-year-old refugee pregnant as a result of rape a cesarean section. So that’s how that law is working out.
And I’m not convinced that a “progressive” popular vote can change the situation. As Robin Marty observes:
After Savita [Halappanavar] died [from an infection during miscarriage], there was a poll that said that 89 percent of people were in favor of abortion to save a woman’s life, which to me is horrifying. Eleven percent of people are against abortion to save a woman’s life.
And that’s not to say that there aren’t problems with reproductive rights in Canada (PEI is one obvious example). But in this new triumphal narrative of the modern Ireland, we should apparently put all reservations aside and instead fête the wonder that is Irish progressiveness and celebrate that same-sex marriage was won through popular vote, all the while turning a blind eye to other serious social injustice in Ireland.
And given the larger picture, that just doesn’t sit well.
The world did not end when same sex marriage was introduced in Canada in 2005 (or in other countries both before and after 2005). Nor did it end when divorce was legalized, or when anti-miscegenation laws were struck down. Indeed, each of these shifts allowed for a rethinking and reimagining of what is – let’s face it – a profoundly patriarchal institution that needs rethinking, reimagining, reconstructing. Same sex marriage doesn’t devalue my heterosexual marriage. It enriches it, by demonstrating the many possibilities of love and commitment and by opening doors to new ways of thinking about an old institution. Given all of this, same sex marriage is, to use an expression popular when I was a teenager, a no-brainer. But it should never have been put to a popular vote.