Image: "Protest for equal marriage rights" by Allan LEONARD @MrUlster used by license CC BY-NC
Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at Ireland's historic gay marriage referendum, and if it could influence the United States Supreme Court.
THE STATEMENTS AT ISSUE:
“DUBLIN -- Catholic and deeply conservative, Ireland was long known as one of the toughest places in the Western world to be gay. Homosexuality was only decriminalized here in 1993, following years of pressure from European authorities. But now Ireland may be preparing for its coming-out party, with a referendum on Friday that could make it the world’s first country to approve same-sex marriage in a popular vote. That such a momentous event in the gay rights struggle could happen here, of all places, reflects the breathtaking social change that has swept Ireland in recent years and the weakening hold of the Catholic Church.”
– Washington Post foreign correspondent Griff Witte, in a story published in that newspaper on May 17.
“Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”
– Actual wording of the “Referendum on Marriage Equality,” as prepared by Ireland’s Ministry for Justice and Equality. If approved by a majority in Friday’s voting, it would amend the Irish national constitution.
WE CHECKED THE CONSTITUTION, AND…
A lively modern debate among constitutional scholars – sometimes joined by Justices of the Supreme Court – focuses on whether the American Constitution should reflect in some way the legal values of foreign nations. What is legal or legally required elsewhere actually has no binding impact on the Constitution’s meaning; that document does not formally acknowledge any foreign influence or sources, although it owes much to English legal history.
But in a global village, where values can spread with the speed of modern communications, it is no longer true (if it ever was) that the U.S. Constitution is a nativist document, embracing only American values.
In fact, the Supreme Court itself has looked abroad now and then to draw some inspiration from what other nations’ legal systems have had to say. That has been most conspicuously true as the court examined the question of global consensus in deciding who – such as juveniles -- should be exempt from the death penalty. Some Justices have openly objected to that, but they have been in the minority.
Part of the reason why this process has remained controversial – in politics especially, but also within the legal community -- is that it originates mainly in a judicial view that constitutional law is a changing not a fixed concept, and that what an “ordered society” should accept as legally proper is bound to, and will, evolve.
As Ireland’s voters go to the polls on Friday to decide for themselves, but as a constitutional matter, whether to open marriage in that country to same-sex couples, it is fair to ask whether the outcome will have any impact in America as that same constitutional question gets worked out.
In America, constitutional answers usually do not come from voters in a national referendum; they come from the Supreme Court (unless a constitutional amendment makes the change).
First of all, if Ireland votes “yes” on Friday on the marriage referendum, will that have any impact on the six members of the Supreme Court who follow the Roman Catholic faith?
Ireland is, after all, a nation with an overwhelming majority of the population adhering to the Roman Catholic faith, which is institutionally opposed to same-sex marriage. Recent polling in Ireland has shown that the “yes” vote seems to have clear majority support. (The margin has been narrowing in recent days, and the outcome is not a sure thing, although it has been 20 years since that Roman Catholic nation divided narrowly -- 51 to 49 percent – in legalizing divorce in the face of strong religious objection.)
But could a “yes” vote on Friday in Ireland make it easier for Catholic judges in America to go along with the idea? The answer is, maybe, but probably not.
Religion may be in the background of a judge’s personal system of values, but there is a well-respected tradition of separating religion and government in America (under the First Amendment, particularly), and most judges would think it quite improper to make a constitutional decision based explicitly upon the dictates of a religious faith.
Probably of more potential influence constitutionally of a “yes” vote in Ireland would be the fact that, for the first time in history, a nation had opted for same-sex marriage by a vote of its people, rather than by an act of a legislature or a court.
The current Supreme Court has a strong respect for the will of the people, and expressed that view rather emphatically in a decision last year (Schuette v. Coalition to Defend Affirmative Action), declaring that the voters usually can be trusted with making a sound judgment even on the most controversial of social and cultural issues (although the Constitution itself does remain a check upon the voters, too).
When the Supreme Court looks (as it surely will) at how the same-sex marriage issue has fared so far in this country, it will be aware that three states have recently authorized such marriages by popular vote, and eight other states have done so through state legislation – with all of those approvals coming in the last six years and most of them in the last three years. That may look to the Justices as a sign of changing public sentiment, whatever has been happening in the courts.
But a vote by a majority in an entire nation, in favor of same-sex marriage, would be likely to suggest at least to some Justices that the consensus in that direction is worth noting and, perhaps, could properly be taken into account in deciding what the Constitution does mean today on that question. Given the rapid shift in popular attitude that such a vote in Ireland would clearly reflect, that could enhance the perception of a developing consensus.
In the end, the decision will turn on how the court interprets the guarantee of “equal protection” in the Constitution’s 14th Amendment. But that phrase is not defined in a fixed way in the basic document, and it has evolved a good deal over its 147-year history.
