The rising use of the referendum to decide on equaliy issues is profoundly wrong, and undermines the idea of fundamental rights – so says Antony Tucker
In 2015 the Republic of Ireland and Slovenia both held referendums over whether or not same-sex couples should be able to marry on equal terms as their heterosexual equivalents. Ireland voted yes, Slovenia voted no; but the results are not the concerning feature of this growing trend for referendums to decide equality issues. Whereas we should congratulate the people of Ireland for embracing equality – and condemn the Slovenian endorsement of discrimination – the crux of the problem is the concept that our rights to equal treatment can be granted or denied according to the whims of the majority. Instead, we must remember that we are born free and equal in dignity and rights; therefore all governments must take the responsibility to deliver an end to discrimination of all sorts and live up to the spirit of our progressive age.
Referendums vary in popularity between nations and systems; nonetheless, they generally decide issues of constitutional dispute. In the United Kingdom, for example, our membership of the European Union (1975 and 2016), the establishment of devolved legislatures (1979 and 1997) and whether we should change the voting system (2011) have all been decided by referendums. Elsewhere in Europe, the vast majority of such votes also revolve around constitutional problems, often the ratification of European treaties. To put the key principles of equality to the ballot, therefore, is not the traditional use of the referendum in Europe.
Rather, the use of referendums may become the first option for gutless and uncommitted governments, unprepared to take responsibility for the potential furore caused by allowing same-sex couples to be married. Australians may be free to decide whether or not to introduce marriage equality; again, this does not stem from a constitutional demand but rather cowardice from the country’s leading parties, who still cannot accept the importance of LGBT rights in the modern age. In Britain, David Cameron led a minority of Conservative MPs to join with Labour and the Liberal Democrats and pass the Marriage (Same Sex couples) Act 2013 – and faced a backlash from his homophobic grassroots members as a result. Ireland’s government, in comparison, passed the buck to the people despite there being no requirement for constitutional change, whilst the homophobic opposition in Slovenia forced the referendum to overturn the majority verdict in favour of equal marriage in the National Assembly.
This last occurrence is the most troubling of all: if the fight for equality is carried out by referendums rather than as the responsibility of representative governments, it establishes the principle that the right to decide who deserves equality is handed to a snap decision of the people. By this measure, one government might seek to overturn any civil rights decision – be it on race, sexuality or gender – and escape the backlash by claiming that such rights were not fundamental but subject to the wishes of others.
But surely, you might say, a referendum is the purest form of direct democracy? Appropriately enough, yes and no. Asking the public to decide a difficult issue might seem fairer than leaving such a choice to our (unjustly maligned) politicians, but this in fact leads to distortion, confusion and outright lies. We have seen this in Britain recently: the SNP were forced to change their chosen referendum question as it was heavily biased in favour of separation, whilst the No to AV side lied repeatedly about the supposed fiscal impacts of electoral reform, helping them to triumph in 2011. A government’s actions form part of a coherent programme, which will be judged later at the ballot box; in comparison, in the weeks leading up to a referendum both sides can lie as freely as they like, knowing that any legal retribution will occur after they have achieved the verdict they want. Witness how in Slovenia the Catholic Church brought the nation’s homophobes together to spout their hateful mistruths, doubting the abilities of same-sex couples as parents.
Despite their flaws, referendums do have their uses. The question of whether Scotland chooses unity or separatism, for example, can only be decided by the electorate as a whole, as independence is an issue that does not follow party lines. Beyond these constitutional debates, however, the referendum should not be used. Rather, responsible government requires that administrations make potentially contentious decisions and not simply pass the buck to the electorate.
Equality issues such as same-sex marriage are especially unsuitable for the referendum process. Our aspirations for equal treatment stem not from the mood of the day or the present discourse but from our shared humanity, which should itself guarantee equality from birth. Rights are not to be grudgingly doled out, but are fundamental, inalienable and universal. All countries in Europe – a continent of democracies committed to human rights – should make it the mission of the state to erode the cruel injustices that perpetuate inequality in this century, with governments having the courage to improve the lives of their citizens, rather than surrendering responsibility to the vagaries of the referendum process. Certain truths must be held as self-evident: one of them is that equality is not optional.