THE BLOG

Human Rights Are Inalienable; Not Subject To The Mood Of The Public

08/09/2017 12:28 BST | Updated 08/09/2017 12:28 BST

If you've been involved in the marriage equality campaign in Northern Ireland, or anywhere else for that matter, you're bound to have heard "Why don't you put it to a public vote?" as a means to resolve the issue. Whilst public support in Northern Ireland for equal marriage is incredibly high, perhaps even higher than in the Republic of Ireland in the run up to the 2015 referendum, but that doesn't mean that a referendum would work here.

The Australian Government, in an effort to fudge the issue and possibly kick the possibility of marriage equality becoming a reality into the long grass for another decade, has announced a voluntary postal plebiscite to gauge people's views on marriage equality. The current Australian PM, Malcolm Turnbull, has publicly backed the idea of equal marriage in Australia but has a significant number of backbench MPs that are vehemently against the idea and any relaxing of the Liberal Party whip to allow supportive MPs to back a change in the law could see him ousted as Prime Minister. This is all conjecture of course, but the idea of a referendum on marriage equality is dangerous and divisive, whether in Australia, Northern Ireland or elsewhere.

Unlike the Republic of Ireland, where the institution of marriage is defined by their Constitution, referenda in nations like Northern Ireland (the United Kingdom) or Australia have no legally binding effect and are nothing more than expensive, drawn out and glorified opinion polls. Even if the result of the Australian postal vote is a resounding Yes to changing the law to afford same-sex couples the same dignity, respect and legal protection as opposite sex couples within the concept of marriage, there is no obligation on MPs that are opposed to the change to actually vote in favour of it. The result could be an overwhelming majority in favour of marriage equality from the public followed by a defeat of any proposed legislation in the Australian Parliament. Not exactly a repeat of the euphoric moment in the Republic of Ireland where the Government is obligated to legislate for any change in the Constitution if approved by a public referendum. Let's also have a look at previous referenda on the issue of marriage equality.

In 2009 the US State of Maine legalised same-sex marriage by way of legislation, which was signed into law by the then Governor, John Baldacci, before a citizen's initiative forced the issue to the ballot box. On November 3rd 2009 the voters of Maine rejected the change in the law to allow same-sex couples to marry by 53% to 47% voting in favour of the law. Cut to 2011 and the LGB&T group EqualityMaine managed to get the issue back on the November 2012 ballot whereby voters reversed the earlier decision and backed marriage equality by 52% to 48%. Despite this being an incredible achievement, it shows just how fickle and cruel the idea of a referendum on LGB&T rights can be. I have no doubt in my mind that those couples were always mindful that their human rights, despite being inalienable, were subject to change depending on the mood of the public and could again have had to fight another ballot initiative or referendum between 2012 and 2015 had opposition groups gathered enough signatures. Is that really a precedent we want to set in Northern Ireland?

Couples that had been elated at the news that they would be allowed to marry in May 2009 had to face the reality in the November of the same year that they would again be unable to marry followed by the change in the law in November 2012, nearly three years before the US Supreme Court decision which legalised equal marriage across the country. Similarly, the Slovenian Government in 2015 passed a Bill that gave same-sex couples all of the same rights, recognition and protections of opposite-sex couples including adoption, marriage and pension protections. After a protracted legal battle in which opposition groups attempted to have the Parliament vote again on the Bill failed, the Parliament blocked a referendum on the matter, a decision which was later reversed by the Supreme Court and allowed to go ahead in December of that year.

Ferocious campaigning by opposition groups claiming that the new law harmed children and would somehow lead to the erosion of morality and family life in Slovenia led to the Bill being rejected by 63% of voters. Just a few months after the Republic of Ireland had legalised equal marriage by way of a referendum the small, former Eastern Bloc nation of Slovenia dashed hopes that marriage would be extended to same sex couples by an almost mirror image of the result in Ireland. What was later legalised in February of 2017 was a watered down version of marriage that barred same-sex couples from IVF treatment or jointly adoption but gave them limited recognition of their relationships by way of Civil Unions.

Given that referenda here are not legally binding, any public vote on an issue such as same-sex marriage could be easily vetoed in the NI Assembly unless the Secretary of State gave assurances that any outcome would obligate the Government to enshrine it into law. During the Brexit referendum, we saw first hand just how much misinformation and spin were deployed by both sides in an effort to win the day, an untold amount of financial, organisational and human resources were thrown at the campaigns. The LGB&T sector in The Republic Of Ireland was stretched incredibly thinly over a short period of time with the entire focus being on one single issue, that of marriage equality. As a sector and as a community we simply do not have the resource to fight that kind of campaign whilst maintaining our delivery of sexual health promotion, hate crime advocacy, mental health work, policy work etc.

A referendum, as has happened in the Republic of Ireland and is now playing out in Australia, would likely not be subject to the same rules and regulations of a normal election. Opposition groups such as the Iona Institute were heavily involved in the promotion and distribution of bare faced lies and misinformation regarding the LGB&T community. Young LGB&T people had to walk past posters that belittled their ability to be loving and responsible parents, posters that told them that they were lesser than their heterosexual peers and thus were undeserving of the same respect and equal treatment under the law.

The Coalition for Marriage in Australia has claimed rather dubiously that "the removal of gender from marriage and the removal of gender from society more broadly are inextricably linked" and that "Concerns about the impacts of the redefinition of marriage go far beyond the wedding ceremony, or even the freedoms of wedding service providers like florists, bakers and photographers (although their freedoms are just as important as anyone else's.)".

This is a clever way of painting those who believe that gay people are somehow exempt from the same protections and respect that their Government affords them are the victims here or would be if the law was changed to open up marriage to everyone. Those statements are the same lines that were wheeled out whenever Governments across the world were considering legalising limited recognition of same-sex relationships by the way of Civil Partnerships or Domestic Unions. The reality is that those people who have always been vehemently opposed to equal treatment for LGB&T people in society will use whatever means necessary to demonise, vilify and criminalise us and a referendum on marriage equality will be another platform to do just that.

It is the responsibility of our Governments to ensure that legislation is passed that will bring Northern Ireland into line with the rest of the United Kingdom on the issue of marriage equality. There is no ducking this, no way around it and a referendum would just be another way to pass the buck to someone else. I sincerely hope that, if not quashed by legal action, the Australian postal vote gives the Government a clear indication that Australians want marriage equality enacted immediately and it isn't delayed further.