Equality terminology may be troublesome for government

Only the people can alter the Constitution and Government should do its utmost not to be seen as interfering with the process, writes Seán Ó Conaill.

With the publication of the proposed wording for next May’s referendum on marriage, the campaign has commenced in earnest.

The proposed text will be analysed in detail over the next few months and will essentially form the main basis of the arguments for and against the proposal.

The Government has suggested that the official title of the referendum will be the ‘Marriage Equality Referendum’. However, such terminology could potentially be constitutionally and legally problematic.

The official name given to any law or legal process is usually decided upon as a matter of law by the Government who put forward the title as part of a bill which is then passed by the Oireachtas (which is essentially controlled by a Government majority).

A bill to amend the Constitution is, however, a very different animal because the Constitution requires the people to consent to any changes to it.

The Constitution cannot be amended by ordinary legislation, which lacks the explicit consent of a majority of the people.

This notion, known as popular sovereignty, is at the very heart of Irish constitutional democracy and leads to the people having a far greater say over constitutional amendments that most other European nations.

If the text of the Constitution is ever to be changed, only the people may bring that change about. The lack of a similar corresponding principle was ultimately one of the great flaws of the 1922 Free State constitution and a very similar flaw in the German constitution in the period between the world wars was ruthlessly exploited by the Nazi Party to sweep away fundamental rights and democratic values.

The people’s right to decide on any proposed constitutional amendment is thus legally sacrosanct and under no circumstances should any government ever attempt to interfere with the referendum process either deliberately or unwittingly.

Unfortunately, sitting Irish governments have a poor record in this regard. In 1995, during the divorce referendum campaign, the government of the day spent taxpayers money in an effort to secure a yes vote.

This expenditure was deemed to be unconstitutional by the Supreme Court in the famous McKenna judgement, which held that the government, which represents all the people of Ireland, should not use taxpayers money in an effort to influence the outcome of a referendum. The court did, however, stop short of overturning the result of the referendum in the later Hanafin case, despite clearly acknowledging that the government had interfered with the people’s right to choose their own constitutional fate.

A further development which has attracted much (and often it is submitted undue) criticism occurred after the Coughlan case, where the court ruled that both sides in any referendum debate should be given equal prominence in the broadcast media so as not to lead to a situation where only one side gains prominence.

A trait of many referendums in Ireland is the fact that often, the main political parties tend to find themselves on the same side, resulting in a skewed representation. The Coughlan principle, whilst not ideal, at least ensures that both sides of the argument get presented even though it can lead to minority views and representatives being given increased prominence to what they would normally expect to attain.

Ultimately, all these developments left us in a position where the Referendum Commission is the main source of impartial and independent advice. The commission is funded by the taxpayers and thus must avoid taking any particular side. Although this can, at times, result in somewhat bland information being presented, the people can at least be comfortable that their freedom to choose their own constitutional fate is not being infringed.

Unfortunately, and surprisingly in light of the foregoing, the present Government parties choose to run their own parallel information campaign during the childrens’ referendum.

The information presented was supposed to be independent and impartial but was quite clearly biased in favour of a yes vote.

The Supreme Court unanimously ruled in the McCrystal case that this was a clear violation of the McKenna principles with regard to spending taxpayers’ money but interestingly, the court also placed a great deal of focus on the imagery and the presentation of the information. The Supreme Court even went so far as to note that certain aspects of the Facebook page of the Government’s information campaign were unconstitutional.

When we turn our attention to the forthcoming referendum on marriage, the terminology used presents us with a problem. Firstly, the term equality is one which the courts have long struggled to fully embrace. Secondly the traditional understanding of equality is that we treat those who are equal equally, but we treat those who are unequal unequally. Treating everyone the same all the time is not in any sense true equality.

By terming the referendum the ‘Marriage Equality Referendum’, is the Government making a value judgement on those who do not intend to support the proposal? Is the title perhaps a loaded one?

Those who vote against the proposal on first principles might entirely reject the notion that they are opposed to equality in anyway.

Similarly on the flip side, the use of alternative terms such as same sex marriage or gay marriage can carry with them an inherent value judgement. For a example, were a couple of the same gender to marry in the event of the proposal being passed, they would very understandably want to be referred to as a married couple and not something nonsensical such as a ‘gay-married’ couple.

It is not clear whether any court would intervene if asked to do so on this matter but certainly the legally and constitutionally safest option for the Government to pursue would be to simply term the referendum the ‘Marriage Referendum’.

Ultimately, it will be the people who will decide the fate of the referendum, and the Government should go to all lengths possible to avoid any hint of interference in that process.

  • Dr Seán Ó Conaill, School of Law, University College Cork
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