The “Equality Referendum”.

My polling card arrived yesterday for what is now universally called the “equality referendum”.  For those of you from elsewhere or living here under a rock i.e., the referendum on the rights of gay people to marry.  I know that I am almost definitely going to vote yes so I suppose many of you may well stop reading at this point.  Those of you who keep up with my blog will wonder at the words “almost definitely”.  I suppose I am a contrarian at heart.  I am most comfortable on the margins and I have to wonder if I am just reflecting that in the “almost definitely”.  The equality referendum looks like a shoe in and that bothers me.  Short of a curve ball at the last minute this looks like a done deal.

There has been remarkably little debate.  Some strong voices against but the ones you would expect i.e., the same ones who come out against women’s rights, and who believe that Dads are a persecuted minority.  I keep thinking that there must be more opposition than seems to be coming through, so where is it?  This is unbelievably easy so far especially when you consider that homosexual activity was still a crime in the 1980s and even now an adult female citizen and her unborn foetus may have to compete for life in certain circumstances.  When did we become so enlightened?

When people are campaigning on an issue that they are directly affected by they will put forward whatever arguments are likely to win favour and alienate as few as possible.  They keep their message simple so as to garner media soundbites. That is to be expected.  A line of reasoning running through the Yes Campaign is, that if you don’t vote yes, you are a homophobe or if not quite that, anti- gay.  Does that stand up to scrutiny?  There is no doubt that when I started this article I thought twice about not declaring where I stood because I felt that I would be branded a homophobe immediately if I took a critical approach, without declaring which side I was on.  That is a bit oppressive and makes me wonder.  It is long established in law that equality does not mean being treated the same.  If everyone was treated in exactly the same manner a great deal of unfairness would result. In this instance however, gay people are being treated unfairly because they do not have the right to marry as things currently stand and it is hard to see how affording them that simple right would result in any unfairness to them per se or any other citizens.  In arguing that the referendum is about equality, the yes campaign is suggesting that members of the LGBT community as well as those who are heterosexual, should be treated equally in terms of the right to marry.  Does that seem right?  I think it does, in so far as what is being asked is that gay people (I am using this as an umbrella term) should have the right to marry if they wish.  I can see no problem with this since as I have said in a previous article it is hard to see how the committed love of two adults wishing to cement their relationship can threaten anyone.    And that is exactly how this referendum is being presented but it is not that simple is it?

Yesterday in the Irish Examiner, always referred to by me and all my generation as the Cork Examiner, Paddy Manning in an article entitled “Why I’ll tick that “nil” box (“nil” with an accent is the Irish for “no”) in a pink glitter pen” argued that as a gay man he would be voting no because “every same sex couple with children has – at least one – parent outside of that family” and treating differently gendered couples equally is either “impossible or an exercise in depriving children of rights.” Mr Manning is of the view that marriage is about children and that no real thought or debate has gone into children’s rights in this context.  He has a point.  A referendum just on the issue of the rights of gay people to marry is not constitutionally necessary in my view.  We are having a referendum because more than the right to marry per se is being considered here if not actually being discussed. What is also under discussion is the right to adopt, the right to avail of a surrogacy service if there is legislation permitting that and in the breakdown of relationships which they do regularly, rights of custody, access etc.  We don’t, to date at any rate, have open adoption so what about the rights of the mother? However, that point is matched in discriminatory terms with those heterosexuals who adopt, in that the birth mothers and fathers have no rights in Ireland in that context either.  So equality of discrimination, perhaps, well it needs to be discussed as an issue – should there be open adoption and if so on what terms? Mind you, since we have a wonderful Adoption Board and no one getting adopted (only the slightest of exaggerations), this argument may well turn out to be academic. Mr Manning says that we are making children into a social experiment and that children in the main do better with a mother and a father.  I am not sure I agree with this, perhaps not least because I am a single parent and I happen to believe that my daughter is doing fine, but because there are many fine single parents all over the western world and there is research which shows that children will thrive in love, stability and reasonable economics more readily than just with a mother and father.  Surrogacy frankly, is far more likely than adoption since as I already indicated adoptions are as rare as hen’s teeth in Ireland now.  Issues arise in surrogacy which are of concern to both heterosexuals and gays such as the rights of the surrogate and the right of children to biological information.

From a legal point of view a family is not defined by whether you have children or not, a couple are a family. As things currently stand a marriage will not be legally annulled simply because the couple can have no children.  Children may be a defining point from a religious perspective but even there the Church will speak of accepting with grace whatever God sends. A couple are no less married in the eyes of the Church because they have no children.  A few years ago we passed a referendum on the rights of children and it is my understanding that they will be afforded a say in matters that directly affect them although I have not seen any enabling legislation as yet.  Frankly, that should be in place before this referendum but that is not to be, maybe because it would broaden the debate?

Mr Manning is concerned about the rights of children where there are competing adult interests and where the referendum has passed.  However, heterosexual relationships break down all the time and there are competing interests to deal with.  Over the years I have dealt with married couples who separated and divorced and who had adopted children and I have also dealt with married couples with children who separated because one or both of them wished to come out as gay.  The complications and heartache are there for heterosexuals in such situations every bit as much and for their children.  Often gay parents suffered terrible discrimination in being deprived of their children and the children of them arising out of such situations.  That can hardly have accorded with the children’s rights. There may be no research to back this up, but I am firmly of the view that children thrive best in openness and clarity and it seems to me that if gay people had the right to marry and all the attendant rights it will be less likely that some might marry women or men simply to have a family and to appear normal with the ensuing problems that brings further down the road.  Personally I think that would be better for everyone, children included.

All Mr Manning’s points are of interest and in one crucial respect I agree with him totally – “Terrible damage is being done to democracy by the enforced unanimity of politicians on this huge change.  No is not homophobia, whatever the activists scream.”  The Yes Campaign is employing the tactics of the extreme right – why are liberals or centrist politicians, let alone the odd slightly left wing politician and groups, adopting these tactics?  I suppose because they work, however, that is hardly a   moral justification?  In the also inaccurately and inappropriately named “Right to Life” referendum (named by the Yes campaign) some decades ago, everyone who was campaigning against was characterised as anti-life and anti-babies. However, that was by people who had a committed very far right agenda.  Only in the years after the passing of the referendum have the nuanced realities and legal arguments of the No Campaign proved almost entirely correct.  The No Campaign (dubbed at the time the Anti Amendment Campaign – how difficult is that as a soundbite, how unsexy compared to the Right to Life) at the time and on the record tried to debate and argue most of what later came through in various cases from “X” onwards.   At the time they were drowned out by simplistic slogans characterising them as anti-life. I am sure you are beginning to see a pattern here and you should remember it. However, there was one crucial difference and that was that the vast majority of the Right to Life people actually believed every word they uttered which made them formidable foes.  There were cynics of course and most of them were politicians who saw a popularity vote in being Right to Life at the time. The whole manner in which the idea of a referendum at that time and on this issue was introduced to the people was entirely craven if not outrightly cynical.  And the passage into the Constitution was and is a legal disaster which can only bring to mind the words of WB Yeats in this celebratory year of his birth  “ Once you attempt legislation on religious grounds, you open the way for every kind of intolerance and religious persecution”.

The politicians, with a few honourable exceptions, now as then are not enlightened, they want to win.  A defeat in this referendum would not be good for their image and a general election is looming.  The youth of our country appears to want this passed.  Politicians wish to court the youth and so index finger to the wind they are Yes to a man and woman.  They do not want a proper debate because it might result in the referendum being lost or tighter or they just might have to be informed on issues about which they know nothing.  Should we expect more from them, of course we should.   That’s why there is a qualification in my Yes vote but I will still vote Yes.

I regret the lack of honesty in the campaign and I can’t help thinking that a cynicism has come into the public discourse that was not there before.  It would take a very brave person under 40 to stand up against headlines such as “Referendum is about how you really feel about Gay People” but for those of us hardened in the Contraceptives Debate, SPUC and Divorce not to mention the decriminalisation of homosexual activity among other worthy campaigns, we recognise these tactics for what they are and are not fooled.  Regardless of how the referendum turns out, I won’t be any happier to vote for any of the so called Yes politicians than I was previously.  With few honourable exceptions I shan’t be judging them on those terms!