Marriage Equality and the
Irish Constitution: Why are
we having a Referendum?
Dr Conor O’Mahony
Senior Lecturer in Constitutional Law, UCC
conor.omahony@ucc.ie
@ConorUCCLaw
Information Cascades
Does the Constitution Permit
Marriage Equality?
“It is my strong belief,
based on sound legal
advice, that gay marriage
would require
constitutional change and
in my view a referendum
on this issue at this time
would be divisive and
unsuccessful and,
furthermore, would
jeopardise the progress
we have made over the
last 15 years” (Irish
Times, December 2007)
Does the Constitution Permit
Marriage Equality?
“There is common
ground in our
understanding of the
Constitution that a
constitutional
referendum would be
required to introduce
the status of same-sex
marriage.” (Dail
Debates, January 2010)
Does the Constitution Permit
Marriage Equality?
“The introduction of full
civil marriage for the gay
community would require
a constitutional
referendum, as has been
indicated by other
speakers. This is the
advice of the AttorneyGeneral and our party’s
legal advice.” (Dail
Debates, January 2010)
Does the Constitution Permit
Marriage Equality?
“…absolute and clear
protection is given in
Articles 40 and 41 to
marriage as an act
between persons of
opposite sex. I am not
saying that in the future
that could not change.
However, the only way it
could change is if there is
a referendum.” (Dail
Debates, January 27
2010)
Does the Constitution Permit
Marriage Equality?
• Article 41 of Irish Constitution & Zappone and
Gilligan v Revenue Commissioners (2006)
• Almost universally assumed to preclude
marriage equality – but do they???
What does the Constitution say
about Marriage?
• Article 41.3: “The State pledges to guard
with special care the institution of
Marriage, on which the Family is founded,
and to protect it against attack.”
• Marriage not defined
• Clearly understood as opposite-sex when
drafted in 1937  but original intent is not
decisive
What have the courts said?
• Walsh J, McGee v Attorney General (1974):
• “… no interpretation of the Constitution is
intended to final for all time. It is given in
the light of prevailing ideas and concepts.”
• Quoted with approval by Dunne J in
Zappone and Gilligan
• So is “Marriage” in Art 41.3 to be defined
by present-day ideas and concepts?
What have the courts said?
• Confusion in Zappone and Gilligan decision
• Dunne J distinguished between “ascertaining
unenumerated rights and redefining a right
which is implicit in the Constitution and which is
clearly understood”
• Held she had “a difficulty in this case in
accepting the arguments of the plaintiffs to the
effect that the definition of marriage as
understood in 1937 requires to be reconsidered
in the light of now prevailing standards and
conditions.”
What have the courts said?
• “How then can it be argued that in the light of
prevailing ideas and concepts that definition be
changed to encompass same sex marriage? ... as
recently as 2004, s. 2(2)(e) of the Civil Registration
Act was enacted. That Act sets out what was
previously the common law exclusion of same sex
couples from the institution of marriage. Is that not
of itself an indication of the prevailing idea and
concept in relation to what marriage is and how it
should be defined? I think it is.”
What have the courts said?
Dunne J accepted “living constitution” doctrine
 She then suggested that current consensus was
irrelevant to definition of marriage (authority she
cited did not support this point)
 She then examined current consensus anyway,
and used it to define marriage as opposite-sex only
What have the courts said?
• At best, Zappone and Gilligan is ambiguous and
contradictory
• Better view is probably that definition of
marriage is to be determined by current
consensus
• Two passages from Zappone and multiple other
authorities support this conclusion
• One passage suggests otherwise, but is not
supported by the authority it cites
Who gets to decide?
• If provisions of Constitution are defined by
reference to current consensus – who gets
to decide what that consensus is?
• The courts could decide – but difficulties
with democratic legitimacy and
institutional competence
• The Oireachtas is better placed to
represent the views of society
Who gets to decide?
• Dunne J cited the Civil Registration Act
2004 as evidence of consensus at the time
• If a “Marriage Equality Act” were enacted
in 2014 – that would represent consensus
today
• Open to challenge in the courts – but who
would have standing to bring challenge?
• Why should the courts not defer to
legislature’s assessment of consensus?
Law and Politics
• Referendum not legally necessary
• Political situation has made it so
• TDs unwilling to legislate without referendum
• Matter referred to Constitutional Convention
• Public think a referendum is necessary and
expect one to happen
• Legislating without referendum no longer
politically feasible
• Court decision potentially damaging – potential
for Proposition 8-style backlash
Disadvantages of Referendum
• Unusual way to advance minority rights claims
• “[F]undamental rights may not be submitted to vote;
they depend on the outcome of no elections.”
(Justice Jackson)
• No filter on tone of debate
• Easier for citizens than for politicians to base vote
on prejudice or animus
• US experience: marriage equality lost 30
referendums in a row
• May be difficult to secure a second shot if it fails
Advantages of Referendum
• Durability – successful outcome unlikely to be
reversed
• Legitimacy – harder for losers to claim they didn’t
get a fair fight
• Shot at history: 3 US States recently approved
marriage equality by referendum – but no country
in the world has done so by national referendum
• Ireland could be a world leader on a key equality
and human right issue
Further Reading
• O’Mahony, “Principled Expediency: How the Irish
Courts Can Compromise on Same-Sex Marriage”
(2012) 35 Dublin University Law Journal 199,
available at http://ssrn.com/abstract=2321595
• O’Mahony, “If a Constitution is Easy to Amend,
Can Judges be Less Restrained? Rights, Social
Change and Proposition 8” (2014) 27 Harvard
Human Rights Journal (forthcoming at
www.harvardhrj.com)