The right of same-sex couples to marry is the subject of a major international debate in constitutional law, and is currently before the appeal courts in both the US and Ireland. However, the real question for the courts is not what to decide, but who gets to decide: the people, their elected representatives, or the courts?
This paper will conduct a comparative analysis of the constitutional case law on same-sex marriage in the US and Ireland, focusing on the interaction between judicial review, representative democracy and direct democracy. This will involve an examination of the decisions of the California Supreme Court in In Re Marriage Cases (2008) and the US District Court in Perry v Schwarzenegger (2010; currently under appeal to the Ninth Circuit) and the decision of the Irish High Court in Zappone v Revenue Commissioners (2006; currently under appeal to the Supreme Court). The context in which the cases have arisen raises questions not just about the relative merits of decision-making by the judiciary and by elected officials, but also about decision-making by the people in direct referendum voting, and how this impacts on the difficulties inherent in judicial review in protecting both minority rights and the wishes of the majority.
The question will be posed as to whether judges should feel emboldened by the presence of direct democracy mechanisms for constitutional amendment, knowing that their decisions can more easily be overturned if they genuinely misjudge prevailing standards and ideas; and how safeguards for minority rights can be incorporated into a system where the majority always has the final say.