Marriage Equality in the US and Ireland: How History Shaped the Future

Abstract

Marriage equality is a growing legal trend in the Western world; developments have reached the point where its legalisation in a Western country is no longer especially noteworthy on a global level. Nonetheless, the two most recent countries to join the club (Ireland and the United States) were the cause of some interest and discussion — not so much because of the decision reached, but because of the means by which that decision was taken. In May 2015, Ireland became the first country to introduce marriage equality following a national referendum (which amended the Irish Constitution). The following month, the U.S. became the first to do so directly on foot of a national court decision.

Both Ireland and the U.S. were the subject of some criticism for settling the marriage equality debate in the way that they did. The use of the courts in the U.S. was seen by some as inherently undemocratic, since it restricted the decision-making power to just nine unelected judges. The use of the referendum in Ireland was seen by some as almost too democratic, in that it used a purely majoritarian process to decide on whether a human right should be enjoyed on an equal basis by a minority group.

This paper has two main arguments, both of which are grounded in constitutional history: first, that the mechanism used for settling the marriage equality debate in each country was inevitable, and second, that it was appropriate to that country. The resolution of the marriage equality debate followed established patterns in the search for a decisive victory in a religious-moral controversy, and has close parallels with the abortion debate in each country. The fact that the legislative route has been used in every other country where marriage equality has been introduced, and navigates a middle road between the opposing disadvantages of litigation and referendums, does not mean that it would have been the appropriate route for either the U.S. or Ireland, where certain fundamental political disputes tend to be resolved through constitutional politics rather than ordinary politics.

Keywords: Marriage equality, same-sex marriage, minority rights, judicial review, SCOTUS, referendum, Ireland