2015 will be remembered as a significant year in the constitutional history of the US and Ireland due to the recognition of a constitutional right to marry for same-sex couples. However, the historical significance is not limited to the mere fact of the recognition of the right; it extends to the manner of its recognition. On a basic level, the fact that Ireland became the first country in the world to introduce marriage equality by national referendum was historic in itself, as (to a lesser extent) was the fact that the US became just the second to do so by national court decision. On a deeper level, the role that the constitutional histories of both countries played in determining the means through which marriage equality was introduced was crucial.
Both Ireland and the US were the subject of some criticism for legalising marriage equality in the way that they did. The resolution of the issue by the courts in the US was seen by some as fundamentally undemocratic. In his dissenting opinion in Obergefell v Hodges, Justice Scalia called the decision a “judicial Putsch” that “robs the People of … the freedom to govern themselves … A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy”. The use of a referendum in Ireland was immune to this particular criticism; instead, it was criticised by some as being too democratic, in that it used a purely majoritarian process to decide on whether a human right should be enjoyed by a minority group. Newspaper op-eds argued that “Ireland’s referendum, however inspiring, is not a step forward for gay rights” (Irish Times); it “is only indicative of what people there think. What it does not do is legitimise or delegitimise gay people’s right to marry” (The Guardian). The campaign was described as an “indignity” for gay people, and even though gay rights won the day, the use of a referendum “reinforce[d] the idea that might is right and that we should be governed by the wishes of the majority, whatever they might be” (Irish Times).
While most countries that have legalised marriage equality have done so via the legislative process rather than by referendum or court decision, this paper will argue that the view that there is one appropriate or ideal way to decide on marriage equality (or similar constitutional controversies) is misplaced. The mechanism that is appropriate to a particular country depends on that country’s constitutional history and its established political and constitutional practices. The debate over marriage equality in the US and Ireland shares many characteristics of the long-running debates over abortion, and thus it is not surprising that the marriage equality debate should be settled in each country using the same means as the abortion debate. It will be argued that the choice of mechanism for addressing marriage equality in the US and Ireland was largely a function of constitutional history: each country used the mechanism best suited to its distinctive political-constitutional culture, and most likely to achieve a durable solution to a politically-contested claim about constitutional rights.