With the proposed wording of the forthcoming referendum having been announced the next question is what exactly the referendum will officially be called. The official naming and broadcasting title of a referendum is not only a politically sensitive matter but it also carries with it certain legal consequences.
Many media outlets seem to have adopted the marriage equality referendum as the title they are prepared to use. More interesting perhaps is the fact that the Government also appears to have adopted the same title and such a choice could potentially be legally problematic.
At the very heart of the Irish Constitution is the notion of popular sovereignty whereby only the people can ultimately decide to amend their own Constitution. This concept is absolutely key to protecting the core freedoms and democratic principles enshrined in the Bunreacht. The lack of a clear requirement for the People to have their say on every amendment was one of the great failures of the 1922 Constitution and indeed a very similar flaw in the Constitution of the Weimar Republic was aggressively exploited by the Nazi party in their rise to power.
Given the importance of the People’s right to decide whether or not to amend their own Constitution it is vital that the Government, which derives its authority to govern from the People, does not interfere in the process in any way. Sadly however the Irish Government has an exceptionally poor record when it comes to illegal interference in the Referendum process. The famous McKenna decision first established the principle that it was illegal for the Government to spend taxpayers’ money in an effort to sway a vote one way or another although the Courts stopped short of overturning the result of the Divorce Referendum, in spite of the illegal Government spend, in the Hanafin decision noting that to do so would be “an awesome undertaking”.
Subsequently the Coughlan decision held that broadcast media must present both sides of a referendum debate in an equally balanced manner. It should be noted however there is no similar requirement for print or online media outlets to do likewise.
These developments ultimately led to the establishment of the Referendum Commission which gives independent and impartial information to the People concerning the various referendums. Although the information from the Referendum Commission can seem somewhat bland at times it is important that as a body funded from public monies that a charge of bias cannot be levied against it and it is submitted that generally speaking the Referendum Commission has served the Irish People well.
For reasons only known to the Government, they decided a number of years ago to run parallel information campaigns to the Referendum Commission’s in the recent referendums. All such Government information campaigns were still subject to the principles established in McKenna. The Children’s Referendum Government information campaign in particular lead to criticism that the campaign was neither impartial nor legal. The Supreme Court upheld this view in the McCrystal case when the constitutionality of the Government information campaign was successfully challenged. The Supreme Court restated the McKenna principles but also placed a great deal of importance upon the use and presentation of terminology, imagery and implied value judgements during the Government information campaign even going so far as to deem the manner in which the Facebook page of the campaign was presented was unconstitutional.
With the McCrystal judgment in particular in mind the terminology of the Marriage Referendum could prove to be quite problematic for the Government. The term “equality” in particular is one which the Irish Courts have long struggled with in the constitutional context. The classic Aristotelian definition of equality which has been accepted by the Irish Courts on many occasions focuses not on treating everyone the same but treating equals equally and unequals unequally. Those on the No side have argued that calling the referendum “The Marriage Equality Referendum” contains an implied value judgement about the nature of equality and suggests that those voting No are opposed to equality. Many on the No side have argued that they are not opposed to equality in any sense but rather see the issue as one which they oppose on first principles. Those on the Yes side counter that the use of some of the other terminology has the same effect. It is worth noting that other terms are equally problematic eg the expressions “gay marriage” and “same sex marriage”, aside from being somewhat nonsensical, in of themselves have an inherent value judgement on the nature of any such marriage and a strong sense of “othering” and is it is submitted that they are particularly unwelcome and unfit phrases.
Although terming the referendum the Marriage Referendum might appear bland it would perhaps be the legally and constitutionally safest option for both the Government who are obliged to comply with the McKenna and McCrystal principles and for the broadcast media who are bound by the Coughlan judgment.
Dr Seán Ó Conaill is a lecturer in Constitutional Law at University College Cork.