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MARRIAGE EQUALITY IN THE

UNITED STATES AND IRELAND:

HOW HISTORY SHAPED THE FUTURE

Conor O’Mahony*

As marriage equality becomes a legal reality in an increasing

number of Western countries, controversy and debate has arisen not

just around the substantive issue, but also around the mechanism

through which the debate is resolved: through the legislature, the

courts, or by popular vote. During 2015, Ireland became the first

country to introduce marriage equality following a national referen-

dum, while the U.S. became the first to do so directly on foot of a na-

tional court decision. On the one hand, some criticized the use of the

courts in the U.S. as inherently undemocratic, since it restricted the

decision-making power to just nine unelected judges. In contrast,

some saw the use of the referendum in Ireland as almost too demo-

cratic, in that it used a purely majoritarian process to decide on

whether a minority group should enjoy a human right on an equal

basis.

Notwithstanding these criticisms, this Article argues that the

mechanism used for settling the marriage-equality debate in each

country was inevitable, and that it was appropriate to that country.

The resolution of the marriage equality debate followed established

patterns in the search for a decisive victory in a religious-moral con-

troversy and has close parallels with the abortion debate in each

country. Other countries have resolved such issues by way of ordi-

nary legislation; and legislation has the advantage of navigating a

middle road between the contrasting disadvantages of court decisions

and referendums. This may well have been appropriate to those coun-

tries; but it does not mean that it would have been the appropriate

route for either the U.S. or Ireland, where certain fundamental politi-

cal disputes tend to be resolved through constitutional politics rather

than ordinary politics.

• Senior Lecturer, School of Law, University College Cork. E-mail: [email protected]. For discussion of and comments on this paper, I am grateful to the participants at the Constitutional History: Comparative Perspectives Symposium hosted by Professor Jason Mazzone in Chicago in April 2016, to participants at the Irish Society of Comparative Law conference in Galway in May 2016, to my colleagues in the University College Cork School of Law research colloquium, and to Aengus Carroll.

682 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

T ABLE OF CONTENTS

I. INTRODUCTION ................................................................................. 682

II. YOU CAN’ T P LEASE EVERYONE .................................................... 683

III. P OLITICAL -CONSTITUTIONAL D YNAMICS .................................... 688

A. Why Marriage Equality Was Not Introduced by Way of Legislation .................................................................................. 689 B. Why Was a Court Decision Chosen in the U.S. and a Referendum Chosen in Ireland? .............................................. 692

IV. P OLITICAL CULTURE ....................................................................... 696

A. Religious-Moral Disputes ......................................................... 696 B. Fundamental Commitments and Constitutional Politics ....... 700

V. SETTLING THE A BORTION DEBATE (AT LEAST F OR NOW) ....... 703

VI. D ISCUSSION ....................................................................................... 707

I. INTRODUCTION

Marriage equality is a growing legal trend in the Western world.

Currently, twenty countries allow marriage between persons of the same

sex, and it is also legal in sub-national territories in several other coun-

tries (including the majority of the UK and large parts of Mexico). While

the introduction of marriage equality is of enormous significance for each

country and society in which it happens, developments have reached the

point where its legalization in a Western country is no longer especially

noteworthy on a global level.

Nonetheless, the two most recent countries to join the club (Ireland

and the United States) were the cause of some interest and discussion------

not so much because of the decision reached, but because of the means

by which that decision was taken. There are three possible ways in which

the debate on marriage equality may be settled. The most common route

is through the legislative process. In May 2015, Ireland became the first

country to introduce marriage equality through a national referendum

(which amended the Irish Constitution). The following month, the U.S.

became the first to do so directly through a national court decision (legis-

lation in some countries was prompted by court decisions, but in the

U.S., there was no legislative involvement).

Both Ireland and the U.S. were the subject of some criticism for set-

tling the marriage-equality debate in the way that they did. The use of

the courts in the U.S. was seen by some as inherently undemocratic, since

it restricted the decision-making power to just nine unelected judges. The

use of the referendum in Ireland was seen by some as almost too demo-

cratic, in that it used a purely majoritarian process to decide on whether

a minority group should enjoy a human right on an equal basis. If both of

these criticisms are taken seriously, it would be tempting to conclude that

the more commonly used legislative process is the most appropriate way

to decide whether marriage equality should be legalized. This process

No. 2] MARRIAGE EQUALITY IN THE U.S. AND IRELAND 683

gives expression to the democratic will of the majority, but also filters out

animus and prejudice by requiring representatives to explain and justify

their vote, and it affords minorities the opportunity to advance their in-

terests through deliberation, alliances, and bargaining.

This Article has two main arguments, both of which are grounded in

constitutional history: first, that the mechanism used for settling the mar-

riage-equality debate in each country was inevitable; and second, that it

was appropriate to that country. The resolution of the marriage-equality

debate followed established patterns in the search for a decisive victory

in a religious-moral controversy and has close parallels with the abortion

debate in each country. The fact that the legislative route has been used

in every other country where marriage equality has been introduced, and

that this route navigates a middle road between the opposing disad-

vantages of litigation and referenda, does not mean that it would have

been the appropriate route for either the U.S. or Ireland, where certain

fundamental political disputes tend to be resolved through constitutional

politics rather than ordinary politics.

Part II sets the scene by outlining the criticisms levied at the advent

of marriage equality by way of the Supreme Court decision in the U.S.

and by way of referendum in Ireland. Part III examines how major issues

are resolved in each country by comparing and contrasting their respec-

tive political-constitutional dynamics. Part IV explores political culture

and the tendency for certain issues with religious or moral implications to

become elevated from the realm of ordinary politics to constitutional

politics. Part V provides historical context by examining the path fol-

lowed by the abortion debate through the prevailing structures in the

U.S. and Ireland. Finally, Part VI concludes by considering the similari-

ties between the abortion debate and the marriage-equality debate in this

regard.

II. YOU CAN’ T P LEASE EVERYONE

In June 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges

that laws excluding same-sex couples from marrying, or refusing to rec-

ognize same-sex marriages performed out of state, violated their right to

marry under both the Due Process and Equal Protection clauses of the

Fourteenth Amendment.^1 Four weeks earlier, in Ireland, the people vot-

ed in a national referendum to amend the Irish Constitution, stipulating

that ‘‘[m]arriage may be contracted in accordance with law by two per-

sons without distinction as to their sex.’’^2 As the old adage goes, you can’t

please all of the people, all of the time; and the criticism of the means

through which the marriage-equality debate was settled in the U.S. and

Ireland is a case in point.

1. Obergefell v. Hodges, 135 S. Ct. 2584, 2604---05 (2015).
2. Constitution of Ireland 1937 art. 41.4, http://www.irishstatutebook.ie/eli/cons/en/html# article41_4.

684 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

The resolution of the issue by the Supreme Court in the U.S. was

considered by some as fundamentally undemocratic. Perhaps the best

example of this criticism is Justice Scalia’s dissenting opinion in Oberge-

fell , in which he called the decision a ‘‘judicial Putsch’’ that ‘‘robs the

People of... the freedom to govern themselves.... A system of gov-

ernment that makes the People subordinate to a committee of nine une-

lected lawyers does not deserve to be called a democracy.’’^3 Other judges

shared this view. Two weeks after Obergefell was decided, the Supreme

Court of Louisiana dismissed an appeal against a lower-court decision

striking down a Louisiana law precluding the recognition of same-sex

marriages performed out of state. 4 In a separate concurring opinion, Jus-

tice Knoll noted that she was ‘‘constrained to follow the rule of law set

forth by a majority of the nine lawyers appointed to the United States

Supreme Court,’’

5 but proceeded to decry the Obergefell decision: It is a sad day in America when five lawyers beholden to none and appointed for life can rob the people of their democratic process, forcing so-called civil liberties regarding who can marry on all Americans when the issue was decided by the states as solemn ex- pressions of the will of the people. I wholeheartedly disagree and find that, rather than a triumph of constitutionalism, the opinion of these five lawyers is an utter travesty as is my constrained adher- ence to their ‘law of the land’ enacted not by the will of the Ameri- can people but by five judicial activists.

6

Her colleague, Justice Hughes, went so far as to issue a dissenting opin-

ion (in clear violation of the Supremacy Clause of the U.S. Constitution^7

and classic Supreme Court decisions on supremacy^8 ).

This strident criticism of the resolution of contested claims about

moral issues by unelected judges, whose decisions are all but impossible

to reverse by democratic means, is a familiar one.^9 Justice Scalia often

made similar remarks in other contexts; for example, he also rejected the

legitimacy of the decisive intervention by the U.S. Supreme Court in the

abortion debate:

[B]y foreclosing all democratic outlet for the deep passions this is- sue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hear- ing and an honest fight, by continuing the imposition of a rigid na- tional rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.^10

3. Obergefell , at 2627, 2629 (Scalia J., dissenting).
4. Costanza v. Caldwell, 167 So. 3d 619, 621 (2015).
5. Id. at 622 (Kroll J., concurring).
6. Id.
7. U.S. CONST. art. VI, cl. 2.
8. See, e.g. , Cooper v. Aaron, 358 U.S. 1 (1958).
9. See, e.g. , Jeremy Waldron, The Core of the Case Against Judicial Review , 115 YALE L.J. 1346, 1353 (2006).
10. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 1002 (1992).

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The above criticisms clearly cannot be applied to the marriage-equality

referendum in Ireland. In 2013, the Constitutional Convention, an as-

sembly consisting of sixty-six citizens, thirty-three elected representa-

tives, and an independent chairperson, recommended that the Constitu-

tion be amended to provide for marriage equality.^11 The Oireachtas (Irish

Parliament) voted overwhelmingly in favor of this amendment in 2015,

but in line with Article 46 of the Irish Constitution, the final say rested

with the people in a referendum held on May 22, 2015.^12 This process al-

lowed a contested moral issue to be directly resolved by a majority of the

people themselves (following deliberation by their elected representa-

tives), thus giving the losers the satisfaction of a fair hearing and an hon-

est fight. (Admittedly, this satisfaction was not universally shared;^13 but in

comparative terms, the process was still surely more satisfactory to op-

ponents of marriage equality than a court ruling would have been.)

Instead of being widely criticized as undemocratic, the referendum

was criticized by a significant number of commentators for being almost

too democratic, in that it used a purely majoritarian process to decide on

whether a minority group should enjoy particular human right on an

equal basis.^14 In West Virginia State Board of Education v. Barnette , Jus-

tice Jackson famously said that

[t]he very purpose of a Bill of Rights was to withdraw certain sub- jects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as

11. See UNA MULLALLY , I N THE NAME OF LOVE 233---45 (2014).
12. See Constitution of Ireland 1937 art. 46, http://www.irishstatutebook.ie/eli/cons/en/html#article46; Marie O’Halloran, Standing Ovation as Seanad Passes Same Sex Marriage Bill , I RISH TIMES (Mar. 27, 2015, 7:19 PM), http://www.irish times.com/news/politics/oireachtas/standing-ovation-as-seanad-passes-same-sex-marriage-bill- 1.2156393.
13. See, e.g ., Breda O’Brien, Asking Questions About Funding for Referendum Campaign , I RISH TIMES (May 9, 2015, 03:30 AM), http://www.irishtimes.com/opinion/breda-o-brien-asking-questions- about-funding-for-referendum-campaign-1.2205469; Breda O’Brien, Garda Body’s Call for a Yes Vote Undermines Democracy , I RISH TIMES (May 2, 2015, 01:00 AM), http://www.irishtimes.com/opinion/ breda-o-brien-garda-body-s-call-for-a-yes-vote-undermines-democracy-1.2197267; Breda O’Brien, Think About Intolerance of Thought Police Before You Vote , I RISH TIMES (May 16, 2015, 02:30 AM), https://www.irishtimes.com/opinion/breda-o-brien-think-about-intolerance-of-thought-police-before- you-vote-1.2214369. See also David Quinn, Government Refuses to Respect ‘No’ Side in Marriage De- bate , I RISH INDEP. (May 8, 2015, 02:30 AM), http://www.independent.ie/opinion/columnists/david- quinn/government-refuses-to-respect-no-side-in-marriage-debate-31204991.html; David Quinn, In 2015 We Voted Against the Right of a Child to a Mother and a Father , I RISH I NDEP. (Jan. 1, 2016, 02: AM), http://www.independent.ie/opinion/columnists/david-quinn/in-2015-we-voted-against-the-right- of-a-child-to-a-mother-and-a-father-34327836.html; David Quinn, The Secret Life of a ‘No’ Voter May Haunt Official Ireland Yet , IRISH I NDEP. (April 24, 2015, 02:30 AM), http://www.independent. ie/opinion/columnists/david-quinn/the-secret-life-of-a-no-voter-may-haunt-official-ireland-yet- 115.html.
14. See, e.g. , Saeed Kamali Dehghan, A Referendum is not the Way to go When it Comes to Gay Rights or Minority Issues , GUARDIAN (May 22, 2015, 03:00 PM), https://www.theguardian. com/world/commentisfree/2015/may/22/a-referendum-is-not-the-way-to-go-when-it-comes-to-gay- rights-or-minority-issues; Omar G Encarnación, Ireland’s Referendum, However Inspiring, is not a Step Forward for Gay Rights , I RISH TIMES (May 26, 2015), http://www.irishtimes.com/opinion/ireland-s- referendum-however-inspiring-is-not-a-step-forward-for-gay-rights-1.2225587; Liam Weeks, Rule by Referendum is not the Best Way to Make Decisions , I RISH TIMES (June 2, 2015), http://www. irishtimes.com/opinion/rule-by-referendum-is-not-the-best-way-to-make-decisions-1.2233896.

686 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

legal principles to be applied by the courts.... [F]undamental rights may not be submitted to vote; they depend on the outcome of no elections.^15

This statement was quoted with approval in the majority opinion of the

U.S. Supreme Court in Obergefell.^16 Indeed, an extensive body of schol-

arship has documented the danger posed to minority rights by direct-

democracy devices such as the referendum and the initiative.^17

In the lead up to polling day in Ireland, columnist Colette Browne

tapped into this line of thinking when she wrote in the Irish Independent:

The closer the referendum on marriage equality comes, the more uncomfortable I get with the notion of voting on other people’s right to marry------not because I don’t support the measure, or think the vote will fail, but because I don’t believe the rights of minorities should be the subject of a popular vote.... Would you feel com- fortable going door-to-door, begging, cajoling and pleading with the people you meet to be extended the same rights they currently en- joy? How would you feel approaching those doors not knowing if the people you meet were going to be supportive or abusive------ bracing yourself every time someone answers for the possibility that they find you, by virtue of your sexuality, disgusting?... This is why we don’t usually let majorities decide on whether minorities in soci- ety should enjoy the same rights we do------because very often those majorities are either indifferent, or hostile, to those groups. Minori- ties in societies are often marginalised and discriminated against precisely because of their status as ‘other’ or ‘different.’ This is where, ordinarily, the Constitution steps in.^18

These sentiments were captured in a campaign video called ‘‘Sinéad’s

Hand,’’^19 which depicted a well-dressed young man nervously knocking

on a door and asking an older man for permission for Sinéad’s hand in

marriage. He was then shown repeating the question at multiple doors,

composing himself as he approached a large apartment block, and asking

passers-by on the street along the way. The video concluded with the

question: ‘‘[h]ow would you feel if you had to ask 4 million people for

permission to get married?’’ In the event, the process of knocking on

doors asking for permission to marry was to play out in very real terms,

15. 319 U.S. 624, 638 (1943).

16. Obergefell v. Hodges, 135 S. Ct. 2584, 2605---06 (2015).
17. See, e.g. , Derrick Bell, The Referendum: Democracy’s Barrier to Racial Equality , 54 WASH. L. REV. 1 (1978); Todd Donovan, Direct Democracy and Campaigns Against Minorities , 97 MINN. L. REV. 1730 (2013); Julian N. Eule, Judicial Review of Direct Democracy , 99 YALE L.J. 1503, 1551--- (1990); Barbara S. Gamble, Putting Civil Rights to a Popular Vote , 41 A M. J. POL. S CI. 245 (1997); Priscilla F. Gunn, Initiatives and Referendums: Direct Democracy and Minority Interests , 22 URB. L.J. 135 (1981).
18. Colette Browne, In the Face of Political Inaction, It Is up to Us to Back the Rights of Minority Groups , I RISH I NDEP. (May 12, 2015, 2:30 AM), http://www.independent.ie/irish-news/referendum/in- the-face-of-political-inaction-it-is-up-to-us-to-back-the-rights-of-minority-groups-31214250.html.
19. Marriage Equality, Sinead’s Hand , YOUT UBE (Aug. 19, 2009), https://www.youtube.com/ watch?v=6ULdaSrYGLQ.

No. 2] MARRIAGE EQUALITY IN THE U.S. AND IRELAND 687

as members of the LGBT community and their allies conducted a large

scale canvassing effort in cities and towns around Ireland. 20

On the day of the referendum, UK-based journalist Saeed Kamali

Dehghan wrote in the Guardian newspaper that referendums are not the

right way to go, ‘‘especially when it comes to gay rights or in fact, any mi-

nority issues.... The idea that the majority can legitimise the right of a

minority is fundamentally flawed.’’^21 Even after the outcome of the refer-

endum, which was a clear victory for marriage equality (with 62% voting

in favor and a high voter turnout), the discomfort of many supporters did

not subside. Political scientist Omar G. Encarnación wrote in the Irish

Times that

Ireland’s referendum, however inspiring, is not a step forward for gay rights.... As gay activists have argued for decades, there is something inherently unseemly about putting the civil rights of any group, especially a historically oppressed one, to a popular vote. Most people could not conceive of doing so to ethnic and racial mi- norities or even women. So what makes gay people deserving of this particular indignity? 22

Similarly, Liam Weeks wrote that the use of a referendum ‘‘reinforce[d]

the idea that might is right and that we should be governed by the wishes

of the majority, whatever they might be,’’^23 while Brian Tobin character-

ized the process as ‘‘crude.’’^24 Opponents of marriage equality expended

considerable resources in portraying same-sex couples as inferior or un-

suitable parents, 25 and campaigners for marriage equality canvassing in

public places and door to door were regularly subjected to personal

abuse.^26 An LGBT helpline service experienced its busiest year ever, with

a huge spike in demand in the lead up to polling day from people seeking

support ‘‘to cope with the intensity of having their lives debated in public,

or to deal with negative attitudes expressed by family members or

friends.’’^27 Clearly, the human cost of the referendum was very significant

for members of the LGBT community.

If deciding on a controversy like marriage equality by court decision

is undemocratic, but deciding on it by referendum is too majoritarian,

20. GRÁINNE HEALY ET AL ., I RELAND S AYS YES : THE I NSIDE S TORY OF HOW THE V OTE FOR

MARRIAGE EQUALITY WAS WON 79---91 (2016).

21. Kamali Dehghan, supra note 14.
22. Encarnación, supra note 14.
23. Weeks, supra note 14.
24. Brian Tobin, Marriage Equality in Ireland: The Politico-Legal Context , 30 I NT. J. LAW, POL ’ Y & FAM. 115, 127 (2016).
25. HEALY ET AL ., supra note 20, at 116---20. See also Johan Elkink et al., Understanding the 2015 Marriage Referendum in Ireland: Context, Campaign, and Conservative Ireland , 31 I R. POL. S TUD. 5--- (2016).
26. Id. at 88---89, 96---97. See also CHARLIE BIRD, A DAY IN MAY 118, 160, 234 (Kevin Rafter ed., 2016).
27. Ed Carty & Michael McHugh, Same-Sex Marriage Vote Sparks Surge in Calls to LGBT Help- line , I RISH EXAM’ R (Feb. 2, 2016), http://www.irishexaminer.com/ireland/same-sex-marriage-vote- sparks-surge-in-calls-to-lgbt-helpline-379400.html. This is not a uniquely Irish phenomenon. See, e.g. , Ellen D.B. Riggle et al., The Marriage Debate and Minority Stress , 38 POL. S CI. & POL. 221 (2005) (dis- cussing the impact of the marriage equality debate on mental health in the U.S.).

688 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

what is the solution? It would be tempting to conclude that it would have

been more appropriate to settle the debate through the legislative pro-

cess. After all, in every one of the eighteen other countries that have in-

troduced marriage equality to date, the final action was taken by the leg-

islature (although occasionally at the urging of a court).^28 The legislative

route treads a line between the two extremes described above: it gives

expression to the democratic will of the majority, but also filters out ani-

mus and prejudice by calling on representatives to explain and justify

their vote, and it affords minorities the opportunity to advance their in-

terests through deliberation, bargaining, and coalition formation. 29 Of

course, the legislative process is not especially well-suited to protecting

minority interests,^30 but comparatively speaking, it is less prone to naked

majoritarianism than a referendum.^31

Tempting as it may be to conclude that marriage equality would

have been more appropriately introduced by way of legislation in the

U.S. and Ireland, this paper argues that such a conclusion would ignore

the constitutional history of each country. It is debatable whether the leg-

islative route would actually have been possible in either country; and

even if it would have been possible, it is questionable whether it would in

fact have been appropriate. Part III will explain the factors that militated

against the use of the legislative route in each country, as well as the fac-

tors that militated in favor of reliance on a court decision or a referen-

dum.

III. P OLITICAL -CONSTITUTIONAL D YNAMICS

As noted in the Introduction, the debate over marriage equality

may be settled by way of ordinary legislation, court decision, or constitu-

tional amendment (with a referendum being a common feature in consti-

tutional amendments on marriage equality to date).^32 This Part will ex-

28. See, e.g. , Minister of Home Affairs v. Fourie, 2005 (60) SA 1 (CC) (S. Afr.) (prompting the enactment of the Civil Union Act 2006 in South Africa).
29. See, e.g. , THOMAS CRONIN , DIRECT DEMOCRACY: THE POLITICS OF I NITIATIVE, REFERENDUM , AND RECALL 28---29 (1989); MARK TUSHNET , TAKING THE CONSTITUTION A WAY FROM THE COURTS 159---60 (1999).
30. See J OHN HART ELY , DEMOCRACY AND DISTRUST : A THEORY OF J UDICIAL REVIEW 78 (1980).
31. See KENNETH P. MILLER , DIRECT DEMOCRACY AND THE COURTS 220---21 (2009); Eule, su- pra note 17, at 1526---28; Gamble, supra note 17, at 246---51.
32. While Ireland is the only country in the world to have legalized marriage equality through a national referendum, it is not the only jurisdiction in which a referendum has been held on a constitu- tional amendment affecting the definition of marriage. Between 1996 and 2012, thirty-one states in the U.S. passed referendums inserting a provision into their state constitution either restricting marriage to different-sex couples, or giving the state legislature the power to define marriage. See MICHAEL J. KLARMAN , FROM THE CLOSET TO THE A LTAR : COURTS , BACKLASH, AND THE S TRUGGLE FOR S AME- S EX MARRIAGE 89---118 (2013). In 2013, Croatia passed a referendum inserting provisions into its na- tional constitution restricting marriage to different-sex couples. See Srećko Horvat, Croatia’s Vote Forbidding Gay Marriage: A Sign of the Rotten Heart of Europe , GUARDIAN (Dec. 4, 2013, 11:51 AM), https://www.theguardian.com/commentisfree/2013/dec/04/croatia-gay-marriage-vote-europe-rotten- heart. A similar referendum was held in Slovakia in 2015 but failed due to inadequate voter turnout. See Ben Tufft, Referendum to Entrench Gay Marriage Ban in Slovakia Overwhelmingly Supported but

No. 2] MARRIAGE EQUALITY IN THE U.S. AND IRELAND 689

plain how there were political-constitutional dynamics at play in the U.S.

and Ireland that militated against choosing the legislative route, notwith-

standing the fact that this is the route most commonly used around the

world. With the legislative route off the table, each country then had to

choose between a court decision or a constitutional amendment. Again,

there were political-constitutional dynamics that militated in favor of

each country choosing one route over the other. In using the term ‘‘polit-

ical-constitutional dynamics,’’ I refer to the interaction between constitu-

tional law and constitutional politics. The factors at play involve not just

constitutional rules, as elaborated in the text of the constitution and as-

sociated case law, but also political realities in how various political and

constitutional actors view the constitution and their role in interpreting,

applying, or amending it.

A. Why Marriage Equality Was Not Introduced by Way of Legislation

The first point to explore is that there were constitutional reasons

militating against the introduction of marriage equality by way of nation-

al legislation in both the U.S. and Ireland. While the right to marry has

long been recognized under the U.S. Constitution,^33 the regulation of ac-

cess to marriage has always been a matter for state law.^34 State laws gov-

erning marriage must comply with the U.S. Constitution, but they are

passed at the state, rather than federal, level; Congress does not have the

power to legislate in this regard.^35 While the Defense of Marriage Act^36

reserved federal recognition of marriage and its accompanying benefits

to marriages between one man and one woman, irrespective of whether a

couple was regarded as married under state law, and provided that no

state would be required to recognize a same-sex marriage that was treat-

ed as a marriage under the laws of another state, it did not purport to

place any restrictions on how states defined marriage. For constitutional

reasons, marriage equality could have been neither prohibited nor man-

dated on a nationwide basis in the U.S. by way of legislation enacted by

Congress. 37 The choice was between individual laws being passed in all

fifty states or a national solution consisting of either a constitutional

amendment or a Supreme Court decision validating or striking down

laws to the contrary. The paragraphs to follow argue that constitutional

Fails Due to Low Turnout , I NDEP. (Feb. 8, 2015), http://www.independent.co.uk/news/world/europe/ referendum-to-entrench-gay-marriage-ban-in-slovakia-overwhelmingly-supported-but-fails-due-to- low-10031769.html.

33. See, e.g. , Turner v. Safley, 482 U.S. 78, 81 (1987); Zablocki v. Redhail, 434 U.S. 374, 390--- (1978); Loving v. Virginia, 388 U.S. 1, 12 (1967); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Cass R. Sunstein, The Right to Marry , 26 CARDOZO L. REV. 2081 (2004); Nelson Tebbe & Deborah Widiss, Equal Access and the Right to Marry , 158 U. PA. L. R EV. 1375 (2009).
34. See United States v. Windsor, 133 S. Ct. 2675, 2691 (2013).
35. Id.
36. Defense of Marriage Act, Pub. L. No. 104---199, 110 Stat. 2419 (1996) (codified as amended at 1 U.S.C. § 7 (2006), 28 U.S.C. § 1738C (2006)), invalidated by Windsor , 133 S. Ct. 2675.
37. See Windsor, 133 S. Ct. at 2695.

690 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

history played a key role in determining the eventual choice in favor of

the latter.

In Ireland, the prevailing view was that there was a constitutional

bar on legislation in favor of marriage equality, but the reasons are very

different and the position less clear-cut. Article 41.3 of the Irish Constitu-

tion of 1937 provides that ‘‘[t]he State pledges to guard with special care

the institution of Marriage, on which the Family is founded, and to pro-

tect it against attack.’’ 38 The term ‘‘Marriage’’ is not defined in the Consti-

tution and was certainly considered to be restricted to different-sex cou-

ples both at the time of drafting and for many years thereafter.^39 It is

well-established, however, that the Irish Constitution is a living constitu-

tion, the interpretation of which should evolve to reflect changing values

and conditions in society.^40 This principle has extended to judgments in

which constitutional terms have been given interpretations that clearly

depart from an accepted original meaning.^41 When the marriage-equality

debate began, there were conflicting views on the impact of the constitu-

tional provisions on marriage.^42

The courts had the opportunity to clarify the position in Zappone

and Gilligan v. Revenue Commissioners , in which two women who mar-

ried each other in Canada argued that their marriage should be recog-

nized under Article 41.3 on the basis of changed consensus on the mean-

ing of marriage.^43 In a confused judgment, the High Court accepted the

concept of the living constitution, 44 then briefly suggested, relying on

questionable use of authority, that Article 41.3 was an exception to the

general rule.^45 It ultimately relied on evidence of prevailing consensus

against same-sex marriage (in the form of a two-year old-statute provid-

ing that it was an impediment to marriage if the parties were of the same

38. Conor O’Mahony, Principled Expediency: How the Irish Courts Can Compromise on Same- Sex Marriage , 35 DUBLIN U. L.J. 199, 200 (2012).
39. Id.
40. See McGee v. Att’y Gen. [1974] IR 284, 319 (1973) (Ir.) (Walsh, J.) (‘‘[N]o interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and con- cepts.’’). This passage has been repeatedly approved in subsequent Supreme Court case law. See, e.g. , A v. Governor of Arbour Hill Prison, [2006] 4 IR 88, 129---30 (Ir.) (Murray, C.J.); Sinnott v. Minister for Educ., [2001] 2 IR 545, 664 (Ir.) (Denham, J.); Dir. of Pub. Prosecutions v. Best, [2000] 2 ILRM 1, 17---18 (1999) (Ir.) (Denham, J.); State (Healy) v. Donoghue, [1976] IR 325, 347 (Ir.) (O’Higgins, C.J.). See generally Conor O’Mahony, Societal Change and Constitutional Interpretation , 1 I R. J. LEG. S TUD. 71 (2010).
41. See, e.g. , Sinnott 2 IR at 718---19 (Geoghegan, J.) (interpreting the expression ‘‘primary educa- tion’’ to include a provision for disabled children that clearly went beyond what was contemplated when the Constitution was drafted and enacted).
42. See, e.g. , GOV ’ T OF I R ., A LL -PARTY OIREACHTAS COMM. ON THE CONSTITUTION , TENTH PROGRESS REPORT : THE FAMILY , at 77---87 (2006), http://archive.constitution.ie/reports/10th-Report- Family.pdf; WORKING GROUP ON DOMESTIC PARTNERSHIP, OPTIONS PAPER , at 4 (2006), http://www. justice.ie/en/JELR/OptionsPaper.pdf/Files/OptionsPaper.pdf.
43. [2008] 2 IR 417 (H. Ct.) (2006) (Ir.).
44. Id. at 505.
45. Id. at 504---05. See O’Mahony, supra note 38, at 204---05 (providing a critique of the reasoning provided in this part of the judgment).

No. 2] MARRIAGE EQUALITY IN THE U.S. AND IRELAND 691

sex) to reject the plaintiffs’ argument.^46 It is clearly possible to read the

decision as suggesting that the meaning of marriage under Article 41.3 is

determined by prevailing consensus, as reflected in the most recent legis-

lation on point; indeed, multiple legal commentators have taken this

view.^47 Moreover, there is a general trend in the Irish courts of deference

to legislative judgment on matters of social policy, with recent examples

including decisions declining to strike down or reinterpret the law gov-

erning the age of consent, 48 the legality of assisted suicide,^49 and the allo-

cation of parentage in surrogacy arrangements.^50 In each of these cases,

the Supreme Court, having reviewed the law, declared the matter a poli-

cy choice that was for the Oireachtas and not the courts to make. Ac-

cordingly, it seems reasonable to suggest that had the Oireachtas chosen

to enact legislation extending access to marriage to same-sex couples,

such legislation would have been unlikely to have been struck down as

unconstitutional by the courts.

But, for reasons that will be explored further in Part IV, this was not

the view the political and legal establishment took of the decision. On

the contrary, the Attorney General and politicians from all the major

parties read the decision as creating a constitutional impediment to the

introduction of marriage equality, meaning that a referendum (a prereq-

uisite to amending the Irish Constitution) would be the only route

through which marriage equality could be achieved.^51 Thus, as a practical

political matter (if not necessarily a legal one), the legislative route was

not a viable route to marriage equality in Ireland. The paragraphs below

will argue that constitutional history was a significant factor in creating

the conditions that led to a referendum becoming politically inevitable,

in spite of being legally avoidable.

The above analysis shows that there were reasons militating against

the use of legislation for introducing marriage equality in each country.

National legislation introducing marriage equality was not within the

powers of the U.S. Congress, and while it is arguable that it would have

46. Zappone and Gilligan , 2 IR at 505---06 (2008) (‘‘Is that not of itself an indication of the pre- vailing idea and concept in relation to what marriage is and how it should be defined? I think it is.’’).
47. See, e.g. , Eoin Carolan, Committed Non-Marital Couples and the Irish Constitution, in COMMITTED RELATIONSHIPS AND THE LAW 239, 263---66 (Oran Doyle & William Binchy eds., 2007); O’Mahony, supra note 38, at 203---04; Brian Tobin, Law, Politics and the Child-Centric Approach to Marriage in Ireland , 47 I RISH J URIST 210, 221---22 (2012); Tobin, supra note 24, at 118---19.
48. MD (a minor) v. Ireland, [2012] 1 IR 697, 719 (Ir.) (‘‘This was a choice of the Oireachtas. Even in a time of social change, it is a policy within the power of the legislature.... The Oireachtas could have applied a different social policy but s. 5, the policy which they did adopt, was within the discretion of the Oireachtas, and it was on an objective basis, and was not arbitrary.’’).
49. Fleming v. Ireland, [2013] 2 IR 417, 441, 447---48 (Ir.) (‘‘The presumption [of constitutionality] may be regarded as having particular force in cases where the legislature is concerned with the imple- mentation of public policy in respect of sensitive matters of social or moral policy.’’).
50. M.R. v. An Tard-Chláraitheoir, [2014] IESC 60 ¶¶ 96, 113 (Ir.) (‘‘As a significant social mat- ter of public policy it is clearly an area for the Oireachtas, and it is not for this Court to legislate on the issue.... Any law on surrogacy affects the status and rights of persons, especially those of the chil- dren; it creates complex relationships, and has a deep social content. It is, thus, quintessentially a mat- ter for the Oireachtas.’’).
51. See, e.g. , O’Mahony, supra note 38, at 205---06; M ULLALLY , supra note 11, at 99, 142.

692 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

been legally possible for the Oireachtas in Ireland, the political reaction

to the High Court decision on point made this impossible. With legisla-

tion off the table, marriage equality became squarely a constitutional is-

sue in each country. This left two choices for resolving the debate: court

decision or constitutional amendment. Why did the U.S. choose the for-

mer, while Ireland chose the latter? Constitutional history provides a

helpful explanation.

B. Why Was a Court Decision Chosen in the U.S. and a Referendum Chosen in Ireland?

In some ways, constitutional structures in the U.S. and Ireland are

very different. The U.S. is a huge federation consisting of fifty states,

with significant powers of government existing at both state and federal

levels. Ireland is a small unitary republic (slightly smaller in both size and

population than South Carolina) with a highly centralized government.

The U.S. model of the separation of powers, with completely separate

executives and legislatures at both state and federal level and features

such as executive veto, differs from Ireland’s Westminster-style integrat-

ed parliament and executive.^52 The combined effect of these differences

is that the normal, everyday politics of the two countries have relatively

few similarities.

There are far fewer differences, however, when it comes to major

national disputes that affect religious-moral questions with implications

for constitutional rights. A number of the fundamental features of the

constitutional structures of the U.S. and Ireland are very similar. Both

are liberal democracies, both systems operate under entrenched written

constitutions that are the supreme source of law, and both have full-

blown judicial review, under which judges may strike down legislation by

reference to vague language in constitutional rights provisions (or, in-

deed, by reference to unenumerated rights not even specified in the text

of the constitution itself). Each country has a history of significant mat-

ters of religious-moral controversy resulting in landmark Supreme Court

decisions, with numerous such decisions (for example on sodomy laws,^53

contraception, 54 and assisted suicide^55 ) containing distinctly similar rea-

soning.

52. See Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 710 (2000); John F. Manning, The New Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939, 1942 (2011).
53. Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that Georgia’s sodomy statute was not unconstitutional as the right to engage in the practice was not deeply rooted in the nation’s history and tradition), with Norris v. Attorney General, [1984] IR 36 (Ir.) (finding that the criminaliza- tion of sodomy between two males was not unconstitutional as it upheld public morality).
54. Compare Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that the Connecticut law banning contraceptive use is an unconstitutional infringement on marital privacy rights), with McGee v. Att’y Gen. [1974] IR 284 (1973) (Ir.) (holding that the prohibition of contraceptives violated the constitutional right of married couples to make decisions concerning their marital affairs).

No. 2] MARRIAGE EQUALITY IN THE U.S. AND IRELAND 693

When it comes to resolving matters of deep controversy, perhaps

the most pertinent difference between the political-constitutional dynam-

ics of the two systems relates to the mechanism for constitutional

amendment. As outlined by Article V of the U.S. Constitution, proposed

amendments must be approved by a two-thirds majority of both houses

of Congress and subsequently ratified by the legislatures of three-

quarters of the fifty states.^56 By contrast, in Ireland, amending of the

Constitution requires a simple majority vote in both Houses of the Oi-

reachtas followed by a simple majority of votes cast in a referendum.^57

It is clear that the U.S. Constitution is far more deeply entrenched

than the Irish Constitution. From a political perspective, there is near

universal consensus that Article V is effectively defunct. As long ago as

1985, Stephen Carter argued that the amendment process of Article V

was ‘‘very nearly a dead letter.’’^58 Bruce Ackerman has written about how

constitutional change is now achieved almost entirely through political

movements and transformative judicial appointments, observing that this

strategy is employed by Republicans as well as Democrats, notwithstand-

ing the former’s avowed preference for originalism. 59 He cautions that,

‘‘[w]hatever the future may hold, don’t expect big changes through for-

mal amendments. We the People can’t seem to crank out messages in the

way described by Article V of our Constitution.’’ 60 Accordingly, a suc-

cessful constitutional amendment was not a realistic goal for either side

of the marriage-equality debate. Proponents of marriage equality never

even considered it; and while it has been attempted more than once by

opponents, all such attempts have fallen well-short of success.^61

This contrasts significantly with Ireland, where constitutional

amendments are quite commonplace. The last time the U.S. Congress

submitted an amendment to the states that was successfully ratified was

1971.^62 Since then, only two amendments have secured a two-thirds ma-

jority in Congress------the last in 1978------and neither was ratified by the

states.^63 In the same period of time in Ireland, thirty-five constitutional

55. Compare Washington v. Glucksberg, 521 U.S. 702 (1997) (holding that the Due Process Clause does not give the right to assistance in committing suicide), with Fleming v. Ireland [2013] 2 IR 417 (Ir.) (finding that the Constitution does not give the right to commit suicide).
56. U.S. CONST. art. V.
57. Constitution of Ireland 1937 art. 46, http://www.irishstatutebook.ie/eli/cons/en/html# article41_4.
58. Stephen L. Carter, Constitutional Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect Muddle , 94 YALE L.J. 821, 842 (1985).
59. Bruce Ackerman , The Living Constitution, 120 HARV. L. REV. 1737, 1741---42 (2007).
60. Id. at 1742---43.
61. See H.R.J. Res. 32, 114th Cong. (2015); S.J. Res. 32, 114th Cong. (2015); H.R.J. Res. 88, 109th Cong. (2006); H.R.J. Res. 106, 108th Cong. (2004). See also KLARMAN , supra note 32, at 105, 115---16.
62. The Twenty-Sixth Amendment to the U.S. Constitution: submitted for ratification on March 23, 1971; ratified on July 1, 1971. U.S. CONST. amend. XXVI.
63. The Equal Rights Amendment was passed by Congress in 1972. The initial ratification peri- od ended March 22, 1979, and the extension period ended June 30, 1982. See, e.g. , Steve Mount, The Failed Amendments , U.S. CONST. ONLINE, http://www.usconstitution.net/constamfail.html (last visited

694 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

amendments have been passed by the Oireachtas, and twenty-seven of

these have been approved in the subsequent referendum. That is not to

say that it is easy to amend the Constitution in Ireland; in fact, several

amendments that were expected to pass have been rejected,^64 and the po-

litical establishment is quite wary of referendums for this reason. The

comparison is used simply to point out that the amendment process is

less demanding in Ireland than in the U.S., and that amendments are far

more commonplace as a result. This impacts the dynamic in constitution-

al politics, in that a constitutional amendment is a realistically available

solution to disputes in a way that cannot be said of the U.S. Part IV will

argue that there are additional reasons why this solution is often availed

of in particular types of disputes.

The other difference between the political-constitutional dynamics

in the U.S. and Ireland that impacts the resolution of constitutional con-

troversies is that the U.S. Supreme Court is significantly more politicized

than its Irish counterpart. Members of the court are nominated by the

executive in each country; the requirement in the U.S. that the nomina-

tion be approved by the Senate following a confirmation hearing is not

replicated in Ireland. But the real difference relates to what happens af-

ter appointment. It is now trite to observe that the U.S. Supreme Court is

a political institution as much as it is a legal one; the only real point of

disagreement relates to the extent to which this is a bad thing.^65 Some

scholars argue that the Supreme Court was always intended to be a polit-

ical institution^66 or that there is nothing surprising about its politiciza-

tion. 67 Others take a more pessimistic view: Eric Segall argued that the

politicization has reached the point where the Court is not really a court,

and the justices are not really judges.^68 On any account, it is clear that the

U.S. Supreme Court has been more than willing to play a key role in

shaping the law on matters of political controversy.

By contrast, while the Irish Supreme Court has gone through peri-

ods of being more or less activist or restrained, it has never been overtly

Dec. 27, 2016). Congress passed The District of Columbia Voting Rights Amendment in 1978; the rati- fication period ended August 22, 1985. Id.

64. See, e.g. , R. Darcy & Michael Laver, Referendum Dynamics and the Irish Divorce Amend- ment , 54 PUB. OPINION Q. 1, 2 (1990) (noting the 1986 divorce referendum); Muiris MacCarthaigh & Shane Martin, Bicameralism in the Republic of Ireland: The Seanad Abolition Referendum , 30 I R. POL. S TUD. 121, 125 (2015) (explaining the 2013 Referendum to abolish Seanad Éireann); Jane Suiter & Theresa Reidy, It’s the Campaign Learning Stupid: An Examination of a Volatile Irish Referendum , 68 PARLIAMENTARY A FFS .182, 188 (2013) (referencing the 2011 Referendum on Houses of Oireachtas Inquiries).
65. See generally Brandon L. Bartels et al., Lawyers’ Perceptions of the U.S. Supreme Court: Is the Court a ‘‘Political’’ Institution? , 49 L. & S OC’ Y REV. 761 (2015) (providing evidence on the range of perceptions held by lawyers on this point).
66. See generally Maeva Marcus , Is the Supreme Court a Political Institution? , 72 GEO. WASH. L. REV. 95 (2004).
67. See generally Ezra Klein, Of Course the Supreme Court is Political , WASH. POST (June 21, 2012), https://www.washingtonpost.com/news/wonk/wp/2012/06/21/of-course-the-supreme-court-is- political/?utm_term=.d14d56fdc929.
68. See generally ERIC J. S EGALL , S UPREME MYTHS : WHY THE S UPREME COURT I S NOT A COURT AND I TS JUSTICES ARE NOT J UDGES 1 (2012).

No. 2] MARRIAGE EQUALITY IN THE U.S. AND IRELAND 695

political in the way that the U.S. Supreme Court is. Ronan McCrea has

observed that ‘‘Irish judges are not public figures in the same way as their

American colleagues... and judges’ decisions cannot be predicted by the

political complexion of the government that nominated them.’’ 69 In re-

cent years, the general trend has been one of consistent deference to the

legislative branch on matters of social controversy (as noted above).^70

Thus, while Irish courts have accepted that constitutional interpretation

should be informed by prevailing ideas and standards in society, and that

legislation considered constitutional at one point might be considered

unconstitutional later on, 71 the likelihood of a future Supreme Court de-

claring unconstitutional a law that excluded same-sex couples from mar-

riage was not a strong one. It was far more likely that future courts would

follow the approach adopted in Zappone and Gilligan and defer to legis-

lative judgment on the issue.

All of the above has a significant impact on the incentives surround-

ing political activism in each country. In the U.S., constitutional amend-

ments at the national level are an implausible goal, whereas the Supreme

Court provides fertile ground in which political claims can be cultivated

as constitutional arguments. The multiple layers of state and federal

courts that must be navigated en route to the Supreme Court make it

possible to fight the litigation battle on a broad front and to secure some

(perhaps many) minor victories or tentative answers that help shape the

argument before final judgment. No pragmatic interest group would tar-

get a constitutional amendment ahead of strategic litigation. Since strate-

gic litigation is a more attractive option, a constitutional amendment only

really becomes relevant as a means for opponents of those pursuing stra-

tegic litigation to preclude or reverse a court decision, as the marriage-

equality debate has repeatedly shown. Thus, while a constitutional

amendment might be targeted as a response to strategic litigation, it

would rarely (if ever) be pursued as a substitute for it. Even if strategic

litigation fails at first, it makes more sense to try again than to move onto

the even steeper hill of a constitutional amendment.

In Ireland, the situation is directly reversed: the Supreme Court is

often at pains to avoid (or at least to be seen to avoid) deciding political

questions, making strategic litigation more challenging than in the U.S.

Thus, proponents of marriage equality attempted it and failed.^72 Being a

69. Ronan McCrea, We Should Avoid Politicising Our Supreme Court , IRISH TIMES (Oct. 16, 2015), http://www.irishtimes.com/news/crime-and-law/we-should-avoid-politicising-our-supreme-court- 1.2390310. See also Jennifer Carroll, You Be the Judge: A Study of the Backgrounds of Superior Court Judges in Ireland in 2004 Part I , 10 BAR REV. 153, 167 (2005) (citing empirical evidence that Irish su- perior court judges are reluctant to self-identify as holding a political ideology, and that they believe ideology has no place in the judiciary).
70. See supra notes 48---50.
71. See A v. Governor of Arbour Hill Prison, [2006] 4 IR 88, 129---30 (2006) (Murray, C.J.) (stat- ing that the Constitution has a ‘‘dynamic quality’’ and must be ‘‘interpreted in accordance with con- temporary circumstances including prevailing ideas and mores,’’ such that ‘‘[i]t is entirely conceivable therefore that an Act found to be unconstitutional in this, the 21st century might well have passed con- stitutional muster in the 1940s or 50s.’’).
72. See Zappone and Gilligan v. Revenue Commissioners , [2008] 2 IR 417 (H. Ct.) (2006) (Ir.).

696 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

small country, there is only one set of courts in which to pursue litigation,

and so there was little else that could be done by way of litigation in the

short term. On the other hand, constitutional amendments are a familiar

feature of the political scene in Ireland. They might not be an everyday

occurrence, but referendums on constitutional amendments have been

an almost annual event since the early 1990s,

73 making an amendment a

realistic (if ambitious) target on issues where politics and constitutional

law become entangled. Knowing that success was unlikely in either the

legislature or the courts, proponents of marriage equality instead target-

ed a constitutional amendment, with some groups campaigning for civil

partnership legislation as a stepping-stone. 74

IV. POLITICAL CULTURE

Understanding why the marriage-equality debate was settled by a

Supreme Court decision in the U.S. and by a referendum in Ireland, and

assessing the appropriateness of these processes, requires more than an

understanding of the prevailing political-constitutional dynamics; it also

requires an understanding of the prevailing political landscape and polit-

ical culture. Similar to a small number of other issues, marriage equality

is not just an ordinary political dispute in the U.S. and Ireland. Marriage

equality raises particular religious-moral issues, with the result that polit-

ical disagreement runs deeper than usual and transcends ordinary poli-

tics. This Part will explain how disputes of this nature interact with the

political-constitutional dynamic existing in the U.S. and Ireland, impact-

ing ordinary politics, judicial appointments, and constitutional amend-

ments. It also demonstrates that on certain fundamental points of disa-

greement, the loss of a battle tends to be seen as a waypoint rather than

an endpoint; each side of the debate will continuously seek to trump the

other until a decisive victory can be secured.

A. Religious-Moral Disputes

In many ways, politics in Ireland and the U.S. bear little resem-

blance to each other. The U.S. has long operated a two-party system with

a clear left-right divide, whereas Ireland has a multiplicity of political

parties, the two largest of which are both center-right. Voting in the U.S.

operates most commonly on a first-past-the-post basis (which lends itself

to clear majorities, especially in light of the two-party system), whereas

Ireland uses proportional representation by single transferable vote

73. See e.g. , Referendum Results, 1937---2015 , Dep’t of Housing, Planning, Community & Local Gov’t (Aug. 23, 2016), http://www.housing.gov.ie/sites/default/files/migrated-files/en/Publications/ LocalGovernment/Voting/referendum_results_1937-2015.pdf.
74. See generally M ULLALLY , supra note 11. The Civil Partnership and Certain Rights and Obli- gations of Cohabitants Act was enacted in 2010. See Civil Partnership and Certain Rights and Obliga- tions of Cohabitants Act of 2010 (Act No. 24/2010) (Ir.), http://www.irishstatutebook.ie/eli/2010/ act/24/enacted/en/html.

No. 2] MARRIAGE EQUALITY IN THE U.S. AND IRELAND 697

(‘‘PR-STV’’) (which lends itself to coalition governments, especially in

light of the multiplicity of parties).^75

For all of these differences, the two countries share one very signifi-

cant commonality in their political landscape: in each case, there is a ten-

dency for particularly deep-seated political disagreement over a small

number of issues that have religious or moral implications. In the U.S.,

this has often been characterized as a ‘‘culture war.’’ 76 Some scholars ar-

gue that the extent of this culture war is exaggerated, and some even

question whether it actually exists.^77 To the extent that it does exist, how-

ever, it is clear that it is at its most intense on a small number of specific

issues with explicit religious-moral implications,^78 and issues like abortion

and marriage equality are, according to constitutional scholar Michael

Perry, at the epicenter of the culture war.^79 Indeed, the culture war has

been expressly referenced in Supreme Court jurisprudence around equal

protection for gay people.^80 The idea of a culture war is less prevalent in

Ireland, but nonetheless, the existence of what has been termed a ‘‘reli-

gious-conservative versus secular-liberal cleavage’’ in Irish politics^81 has

featured prominently in Irish political-science literature, and its impact

on constitutional politics has been particularly noted.^82

While the so-called culture war has transferred to party politics to a

reasonably identifiable degree in the U.S., the ballot box is neither the

only nor the decisive battleground. Staggered elections make it extreme-

ly difficult for one party, at the federal level, to hold all of the levers of

power at the same time.^83 Consequently, even if legislation is enacted ad-

vancing the worldview of one side or the other, it is susceptible to being

vetoed by the executive branch^84 or being invalidated by the courts.^85 In

75. Single Transferable Vote , ELECTORAL REFORM SOCIETY , http://www.electoral-reform. org.uk/single-transferable-vote (last visited Dec. 27, 2016).
76. William G. Jacoby , Is There a Culture War? Conflicting Value Structures in American Public Opinion , 108 A M. POL. S CI. REV. 754, 755 (2014).
77. Id. at 755---56.
78. See Nancy J. Davis & Robert V. Robinson, Are the Rumors of War Exaggerated? Religious Orthodoxy and Moral Progressivism in America , 102 AM. J. S OC. 756---58 (1996).
79. MICHAEL J. PERRY , CONSTITUTIONAL RIGHTS , MORAL CONTROVERSY, AND THE S UPREME COURT 48 (2009). See also Robert P. George, Gay Marriage, Democracy and the Courts , WALL S T. J. (Aug. 3, 2009, 11:22 AM), http://www.wsj.com/articles/SB
81. Romer v. Evans, 517 U.S. 620, 652 (1996) (Scalia, J., dissenting).
82. Richard Sinnott, Cleavages, Parties and Referendums: Relationships Between Representative and Direct Democracy in the Republic of Ireland , 41 EUR. J. POL. RES. 811, 815 (2002).
83. See, e.g. , Michael Gallagher, Ireland: The referendum as a conservative device? , in THE REFERENDUM EXPERIENCE IN EUROPE 101---102 (Michael Gallagher & Pier Vincenzo Uleri eds., 1996); Conor O’Mahony, Falling Short Expectations: The 2012 Children Amendment, from Drafting to Referendum , 31 I R. POL. S TUD. 252, 272 (2016).
84. Ackerman, supra note 59, at 1810.
85. For example, in 2009, when Vermont became the first state to announce marriage equality through the legislative process, the governor vetoed it. See KLARMAN , supra note 32, at 129. There are multiple examples of abortion legislation being vetoed by the executive branch. See, e.g. , Partial-Birth Abortion Ban Act of 1997, H.R. 1122, 105th Cong. (1997) (vetoed Oct. 10, 1997); Partial-Birth Abor- tion Ban Act of 1995, H.R. 1833, 104th Cong. (1996) (vetoed Apr. 10, 1996).

698 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

the long run, the only branch of government that can make a decision

that is relatively durable is the U.S. Supreme Court.^86 In theory, its deci-

sions can be set aside by a constitutional amendment, but, as shown in

Part III, amending the federal constitution is next to impossible in prac-

tice (especially on an issue of religious-moral controversy). 87 It may

sometimes be possible to recast invalidated legislation so as to comply

with or circumvent the Court’s decision, 88 but this clearly does not apply

to a black-and-white question like whether same-sex couples have the

right to legally marry. The only realistic way of setting aside a definitive

Supreme Court ruling is for a later court to overturn it; but this takes sig-

nificant time, as well as consistently favorable developments in electoral

politics.^89 Thus, while religious-moral controversies will play themselves

out at lower levels of government, both sides will have one eye on an

eventual victory in the U.S. Supreme Court as an endgame that is likely

to endure for some time. The politicized nature of the Court, described

in Part II above, provides further incentive for this strategy.

Meanwhile, in Ireland, the religious-conservative versus secular-

liberal cleavage has not translated into party politics to any great extent,

and it has become increasingly difficult for either side of the divide to se-

cure a majority through electoral politics. The PR-STV voting system

makes outright majorities for individual parties a rarity;^90 even when a

party goes into Government with a clear manifesto position on a reli-

gious-moral issue, it has to negotiate a Programme for government with a

party that may have a different position. There is also limited scope for

the religious-conservative versus secular-liberal cleavage to play out in

the courts. As already noted, the Irish Supreme Court is significantly less

politicized than its U.S. counterpart. Supreme Court judges are political

appointees, but the religious-conservative versus secular-liberal cleavage

85. The courts have invalidated abortion legislation on multiple occasions since Roe v. Wade. See J ON O. S HIMABUKURO, CONG. RESEARCH S ERV ., RL33467, A BORTION : J UDICIAL HISTORY AND LEGISLATIVE RESPONSE 2---3 (2016), https://www.fas.org/sgp/crs/misc/RL33467.pdf.
86. But see Barry Friedman, The Importance of Being Positive: The Nature and Function of Judi- cial Review , 72 U. CIN. L. REV. 1257, 1295---96 (2004) (arguing that a Supreme Court decision is not the final say, but part of a dialogue in which the Court fulfills the function of focusing and sustaining a debate, couching it in constitutional terms, and synthesizing the views of society on the matter at hand).
87. See supra Part III.
88. See J. MITCHELL PICKERILL , CONSTITUTIONAL DELIBERATION IN CONGRESS : THE I MPACT OF J UDICIAL REVIEW IN A S EPARATED S YSTEM 31---61 (2004) (examining the response of Congress where federal legislation was invalidated by the Supreme Court between 1953 and 1997).
89. See Bruce Ackerman, Higher Lawmaking , in RESPONDING TO I MPERFECTION : THE THEORY AND PRACTICE OF CONSTITUTIONAL A MENDMENT 63, 82---84 (Sanford Levinson ed., 1995); Neal Devins, Through the Looking Glass: What Abortion Teaches Us About American Politics , 94 COLUM. L. REV. 293, 302, 305, 323---24 (1994) (reviewing BARBARA HINKSON CRAIG & DAVID M. O’BRIEN , A BORTION AND A MERICAN POLITICS (1993), and discussing the use of judicial appointments to influ- ence constitutional interpretation, particularly in the context of abortion); Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash , 42 HARV. C.R.-C.L. L. R EV. 373, 381 (2007).
90. The last single-party government was from 1987---1989; but this did not hold an outright ma- jority and depended on support from independent members. The last outright majority held by a sin- gle party was from 1977---1981.

No. 2] MARRIAGE EQUALITY IN THE U.S. AND IRELAND 699

has not translated into judicial appointments or judicial ideology.^91 Thus,

unlike in the U.S., there is no incentive for either side of the cleavage to

seek to advance their worldview by securing constitutional change

through the vehicle of judicial appointments.

On the other hand, the process of amending the constitution by ref-

erendum has proven to be especially well-suited to the resolution of ma-

jor controversies situated on the religious-conservative versus secular-

liberal cleavage. This process has the obvious appeal of being a decisive

victory that cannot be amended by legislation or overturned by the

courts, but there are other reasons as well. Richard Sinnott argues that

the religious-conservative versus secular-liberal cleavage in Irish politics

finds greater expression in referendums than in party politics.^92 The ref-

erendum offers the possibility for the final decision on a religious-moral

controversy to be made directly by the people, without partisan disa-

greement among the political parties.^93 This serves to insulate the politi-

cal parties against the impact of a contentious debate. Parties are all too

eager to avail of this insulating effect, as was particularly evident on the

issue of marriage equality. Not content with leaving the decision to the

people, Fine Gael (the larger party in the coalition government) sought

to further distance itself by insisting that the issue be referred to, and

agreed by, the Constitutional Convention before committing to holding a

referendum.^94 (Notably, the same approach has now been adopted on the

issue of abortion).^95 It is common for Irish referendums on religious-

moral issues to proceed on a consensus basis;^96 by avoiding partisan disa-

greement, political parties can avoid being targeted for electoral retribu-

tion for their stance on the referendum, since all of the parties’ stance

was the same.

While the existence of specific constitutional provisions on point

means that social reforms, such as the introduction of divorce^97 or the lib-

eralization of abortion laws, 98 clearly could not occur without a referen-

dum, it was noted earlier that there were good grounds for believing that

a referendum on marriage equality was not legally necessary. That all po-

litical parties were so quick to take the view that a referendum was una-

91. See , e.g. , Carroll, supra note 69, at 166.
92. Sinnott, supra note 81, at 815.
93. Id. at 817.
94. Tobin, supra note 24, at 123; see also MULLALLY , supra note 11, at 84---86, 233---45.
95. Noel Baker, Frances Fitzgerald Tells UN a Citizens’ Assembly Will Consider the Eighth Amendment on Abortion , I RISH EXAM’ R (May 12, 2016), http://www.irishexaminer.com/ireland/ frances-fitzgerald-tells-un-a-citizens-assembly-will-consider-the-eighth-amendment-on-abortion- 37.html.
96. Sinnott, supra note 81, at 817. See also Gallagher, supra note 82, at 99.
97. As originally enacted, Article 41.3 of the Irish Constitution prohibited divorce; this prohibi- tion was removed following a referendum in 1995. Fifteenth Amendment of the Constitution Act 1995 (Ir.), http://www.irishstatutebook.ie/eli/1995/ca/15/schedule/enacted/en/html#sched (allowing for the dissolution of marriages).
98. The Eighth Amendment to the Irish Constitution in 1983 inserted a new provision, Article 40.3.3°, recognizing the right to life of the unborn. Eighth Amendment of the Constitution Act 1983 (Ir.), http://www.irishstatutebook.ie/eli/1983/ca/8/schedule/enacted/en/html; infra Part V.

700 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

voidable, in spite of voluminous legal commentary to the contrary, argu-

ably reflects an underlying preference in Irish politics for controversies of

this sort to be dealt with through the referendum process. In line with the

consensus approach described above, all parties agreed to support the

amendment.

The flipside of this is that religious-conservative groups have gained

more influence than they have in the legislative process. While such

groups may not have been happy with all aspects of how the marriage

referendum was conducted, the reluctance of political parties to adopt

clear competing positions on religious-moral issues leaves them feeling

even more voiceless and disenfranchised in electoral politics at present.^99

On the other hand, international evidence shows that where all political

parties are in agreement on a referendum proposal, the issue becomes

less of a partisan one and voters are inclined to take their cues from oth-

er factors or groups. 100 As a result, the record shows that religious-

conservative groups have succeeded in exerting significant influence on

the referendum process in Ireland, notwithstanding their comparative

lack of influence on electoral politics.^101 This helps explain why only a

handful of Oireachtas members voted against the passage of the mar-

riage-equality amendment through parliament, but over one-third of

Irish voters voted ‘‘No’’ in the referendum itself. It also illustrates how

the referendum process acts as something of a safety valve through which

the political parties allow disagreement along this political cleavage to be

ventilated without interfering with everyday politics.

B. Fundamental Commitments and Constitutional Politics

Certain political disputes------like the issues at the heart of America’s

culture wars, or those situated on the religious-conservative versus secu-

lar-liberal political cleavage in Ireland------go beyond ordinary politics.

They do not relate to people’s shallow, short-term commitments, which

might change rapidly and are expressed through laws that are easy to

change. By contrast, fundamental disagreements on issues like abortion

and marriage equality relate to people’s deep, fundamental commitments

to the kind of society they want to live in. These are the kind of commit-

ments that tend to find their way into a country’s constitution.^102 Laws

99. See, e.g. , David Quinn, Micheál Martin Should Talk to the Orphaned Conservative Voters , I RISH I NDEP. (May 29, 2015), http://www.independent.ie/opinion/columnists/david-quinn/michel- martin-should-talk-to-the-orphaned-conservative-voters-31262388.html; David Quinn, The Next Goal for Liberals Will be Referendum on Abortion , I RISH I NDEP. (May 25, 2015, 2:30 AM), http://www. independent.ie/irish-news/referendum/the-next-goal-for-liberals-will-be-referendum-on-abortion- 50555.html.
100. Lawrence Leduc, Opinion Change and Voting Behaviour in Referendums , 41 EUR. J. POL. RES. 711, 722---24 (2002). See also Darcy & Laver, supra note 64, at 15---17; Jane O’Mahony, Ireland’s EU Referendum Experience , 24 IR. POL. S TUD. 429, 432 (2009); Michael Gallagher, Parties and Refer- endums in Ireland 1937-2011 , 26 I R. POL. S TUD. 535, 540---42 (2011).
101. Gallagher, supra note 100, at 101---02.
102. See, e.g. , Walter F. Murphy, Constitutions, Constitutionalism, and Democracy , in CONSTITUTIONALISM AND DEMOCRACY : TRANSITIONS IN THE CONTEMPORARY WORLD 3, 10 (Doug-

No. 2] MARRIAGE EQUALITY IN THE U.S. AND IRELAND 701

based on these fundamental commitments are made more difficult to

change to ensure that any amendments to them are also based on deep,

fundamental commitments, not just shallow, short-term ones. Ordinarily,

constitutional change can only be brought about by a particularly serious

political effort. The nature of the effort involved makes it clear to every-

one that the decision being made is a particularly serious one and sets it

apart from ordinary politics.^103 Arguably, when law reform takes place

that touches on issues at the epicenter of the culture wars in the U.S. or

situated on the fault line of the religious-conservative versus secular-

liberal cleavage in Ireland, ordinary politics would not suffice, even if

(strictly speaking) the debates on issues like abortion and marriage

equality could have been resolved without any recourse to the Constitu-

tion.

Moreover, on issues of fundamental disagreement on deeply held

beliefs, it is inevitable that each side of the debate will utilize every pos-

sible forum with the aim of securing a decisive victory. Interest groups

with deep-seated commitments on either side of the debate on issues like

abortion or marriage equality will not lightly abandon their pursuit of

victory and will explore every possibility of reversing any success

achieved by the other side. Nancy Knauer has likened the struggle over

marriage equality in the U.S. to a game of ‘‘paper, scissors, rock.’’^104 Pro-

ponents sought to use litigation in state courts to invalidate legislation;

whereupon opponents sought to use state constitutional amendments to

reverse or preclude court decisions; and finally, proponents used litiga-

tion in the federal courts to invalidate state constitutional amendments.^105

The intensity of the struggle is a function of the intensity of the dis-

agreement. The final goal towards which the struggle is orientated is a

product of the political-constitutional dynamics described in Part III

above: a politicized Supreme Court is, in practice, the final arbiter of

fundamental disputes in the U.S., whereas a referendum on a constitu-

tional amendment plays that role in Ireland. It is easy to be cynical about

the factors that have led to fundamental disputes being resolved in these

ways, but constitutional history shows that the practices are well-

established. Moreover, on disputes over deeply held views on issues like

abortion and marriage equality, there are good reasons for relying on

these established practices.

Because constitutional change is all but impossible by way of

amendment in the U.S., it is mostly achieved through Supreme Court de-

cisions. But this does not mean that change comes about easily: on the

las Greenberg et al. eds., 1993); Conor O’Mahony, If a Constitution is Easy to Amend, Can Judges be Less Restrained? Rights, Social Change, and Proposition 8 , 27 HARV. HUM. RTS. J. 191, 196---205 (2014).

103. See Friedman, supra note 86, at 1297; see also Donald S. Lutz, Toward a Theory of Constitu- tional Amendment , in RESPONDING TO I MPERFECTION , supra note 89.
104. Nancy J. Knauer, The Recognition of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, and Strategic Institutional Choice , 28 U. HAW. L. REV. 23, 76 (2006).
105. See , e.g. , id. at 26.

702 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

contrary, it is often the product of a sustained political effort over a

lengthy period of time. An increasing number of prominent scholars ar-

gue that developments in the Supreme Court’s rights jurisprudence are

strongly influenced by developments in electoral politics. Jack Balkin has

argued that popular opinion, as expressed through elections, legislation,

and judicial appointments, influences the Supreme Court’s interpretation

of the U.S. Constitution over time.^106 Similarly, Bruce Ackerman argued

that the interpretation of the Constitution is shaped over time by politi-

cal movements that bring about landmark statutes and ‘‘superprece-

dents.’’^107 Barry Friedman characterized Supreme Court decisions as part

of a dialogue in which the Court fulfils the function of focusing and sus-

taining a debate, couching it in constitutional terms, and synthesizing the

views of society on the matter at hand. 108 No matter how the process is

described, the point is the same. A landmark Supreme Court decision on

a fundamental dispute, such as abortion or marriage equality, is not ordi-

nary politics------it is constitutional politics, through which the American

people resolve disputes over their deepest commitments. Everyone un-

derstands that the stakes are high and that the effort involved in chang-

ing direction is considerable; the final result will reflect both the depth of

this effort and (most likely) the views of the majority. People will disa-

gree as to the appropriateness of resolving disputes in this way, but for

now, it is how these things are done, and everyone understands this.

Since the Supreme Court is, in practice, the means through which consti-

tutional change is achieved, it can be argued that it is appropriate that it

should adjudicate disputes that relate to people’s fundamental commit-

ments.

Similarly, in Ireland, reliance on a constitutional referendum as the

means to resolve fundamental disagreements related to the People’s fun-

damental commitments serves the function of setting the issue apart as

constitutional rather than ordinary politics, and it requires a special ef-

fort over time in order to achieve change. The vehicle is different in the

U.S., but the journey and the destination are the same. A constitutional

amendment is a relatively durable way of settling the debate, but can on-

ly be achieved if a sustained effort over time can produce the necessary

ingredients of consensus among the political parties and a majority in the

referendum itself. While the process is more democratic than reliance on

the Supreme Court in the U.S., it is less well suited to the protection of

minority rights; but for good or for ill, it is how these things are done, and

everyone understands this. Again, since a referendum is the means

through which constitutional change is achieved in Ireland, it can be ar-

gued that it is appropriate that disputes that transcend ordinary politics

be settled by referendum.

106. See generally JACK M. BALKIN , LIVING ORIGINALISM (2011).
107. See generally Ackerman, supra note 59.
108. See Friedman, supra note 86, at 1290---91.

No. 2] MARRIAGE EQUALITY IN THE U.S. AND IRELAND 703

V. SETTLING THE A BORTION DEBATE (AT LEAST F OR NOW)

The clearest illustration of why the marriage-equality debate was

settled by a Supreme Court decision in the U.S. and by a referendum in

Ireland can be provided by examining of the constitutional history of the

abortion debate in each country. This closely related (if not quite identi-

cal) religious-moral controversy has been addressed using the same

mechanisms, for the same reasons. In many countries, the legal position

on abortion is set out in ordinary legislation. 109 A brief examination of the

constitutional history of the U.S. and Ireland, however, shows how the

search for a decisive victory in a political dispute over a religious-moral

issue caused that issue to become constitutionalized. In the U.S., the

combination of a deeply entrenched constitution and a politicized Su-

preme Court led to the legal position being settled by a series of Su-

preme Court decisions.^110 In Ireland, the reluctance of the courts to get

involved, coupled with the relative ease of constitutional amendment and

the preference of politicians to allow the people to directly decide the is-

sue, meant that the legal position has been settled by a series of referen-

dums. 111

In the U.S., abortion has long been a flashpoint in the so-called

‘‘culture wars.’’ Up to the 1970s, the regulation of abortion was consid-

ered to be a matter for state law.^112 Some states allowed it, while the ma-

jority did not (unless necessary to save the life of the mother).^113 In 1973,

the Supreme Court ruled in Roe v. Wade that the right to privacy under

the U.S. Constitution precluded the enactment of laws prohibiting abor-

tion during the first or second trimester.^114 Of course, Roe did not entirely

settle the matter. The decision in Roe is probably the most controversial

decision ever handed down by the U.S. Supreme Court. Unlike decisions

in which the Supreme Court has reflected a trend in national consensus

and merely suppressed outliers,^115 the decision in Roe was handed down

at a time when the majority of states had laws similar to that which were

struck down. 116 Thus, rather than settling the abortion debate, Roe be-

came a point of departure.^117

In spite of the continuing controversy over Roe , Justice Ruth Bader

Ginsburg has opined that the Court’s error was one of timing rather than

109. See Louise Finer & Johanna B. Fine, Abortion Law Around the World: Progress and Pushback , NAT ’ L CTR. FOR BIOTECHNOLOGY I NFO. (Apr., 2013), http://www.ncbi.nlm.nih.gov/ pmc/articles/PMC3673257/.
110. See generally Devins, supra note 89.
111. See Tobin, supra note 24, at 127.
112. Fiona de Londras , Constitutionalizing Fetal Rights: A Salutary Tale from Ireland , 22 MICH. J. GENDER & LAW 243, 252---62 (2015).
113. See Abortion , S UP. CT. REV ., http://supremecourtreview.com/default/issue/ (last visited Dec. 27, 2016).
114. 410 U.S. 113, 153---54 (1973).
115. See, e.g. , BALKIN , supra note 106; Ackerman, supra note 59 (documenting this general ten- dency of the U.S. Supreme Court).
116. 410 U.S. at 118.
117. Devins, supra note 89, at 293---94.

704 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2017

of substance.^118 Roe may have gotten ahead of public opinion when it was

decided, but opinion polls in subsequent years have consistently shown

that a majority of Americans believe that the decision should not be

overturned. 119 Countless state and federal legislative enactments have at-

tempted to limit its scope, and presidential candidates and judicial nomi-

nees alike are routinely interrogated as to their views on the decision.

Nonetheless, its central finding------that the decision as to whether to have

an abortion is a private matter between a woman and her physician that

attracts constitutional protection------has survived intact. Its trimester

framework was later modified in Planned Parenthood of Southeastern

Pennsylvania v. Casey so as to allow for greater state regulation of abor-

tion, but its central finding was reaffirmed.^120

In effect, Casey became the decision that settled the debate (at least

for the time being). Neal Devins has argued that it stabilized state abor-

tion politics by providing a template that helps states determine what

types of abortion regulations can be constitutionally pursued, and estab-

lishing a standard sufficiently malleable that it can be applied to either

uphold or invalidate nearly any law that a state is likely to pass.^121 Devins

concluded that ‘‘forty years after Roe and twenty years after Casey , it

seems unlikely that there will be a fundamental political and popular rea-

lignment on abortion.’’ 122 In such a politically contested space, this is

quite a statement.

The history of the U.S. abortion debate illustrates the points made

in Part IV. The depth of disagreement caused the issue to transcend or-

dinary politics, and it ensured that both sides would pursue victory in

every possible forum. The debate has raged at all levels of government,

with bills being vetoed or struck down by courts on a regular basis, but

the principles established in Roe (as later modified by Casey ) have re-

mained constant. Given that a constitutional amendment was not a viable

prospect, a Supreme Court decision reflecting an emerging national con-

sensus was the only realistic means through which such a lasting solution

could have been reached in U.S. law.

118. David Crary, Ruth Bader Ginsburg Questions Timing of Roe v. Wade , Gives Hint on Same- Sex Marriage Issue, HUFFINGTON POST (Feb. 10, 2012, 6:16 PM), http://www.huffingtonpost.com/2012/ 02/10/ruth-bader-ginsburg-roe-v-wade-gay-marriage_n_1269399.html [https://perma.cc/TH8B-L9MP].
119. Gallup polls show that between 1989 and 2012, the number of Americans who believed that Roe should not be overturned has ranged between 52% and 68%, while the number that believed it should be overturned has ranged between 25% and 36%. See generally Abortion , GALLUP, http:// www.gallup.com/poll/1576/abortion.aspx (last visited Dec. 27, 2016). Similar findings have been made by the Pew Research Center. See Roe v. Wade at 40: Most Oppose Overturning Abortion Decision , PEW RES. CTR. (Jan. 16, 2013), http://www.pewforum.org/2013/01/16/roe-v-wade-at-40/.
120. 505 U.S. 833 (1992). Again, the position stated in Casey has subsequently been supported by a majority of Americans. See Majority of Americans Still Support Roe v. Wade Decision , GALLUP (Jan. 22, 2013), http://www.gallup.com/poll/160058/majority-americans-support-roe-wade-decision. aspx.
121. See generally Neal Devins, How ‘‘ Planned Parenthood v. Casey ’’ (Pretty Much) Settled the Abortion Wars , 118 YALE L.J. 1318, 1334---38 (2009).
122. Id. at 1351---52.

No. 2] MARRIAGE EQUALITY IN THE U.S. AND IRELAND 705

The history of the abortion debate in Ireland is inextricably linked

to Roe. The privacy dimension of Roe built directly on the earlier deci-

sion in Griswold v. Connecticut , in which the Supreme Court first recog-

nized the unenumerated constitutional right to (marital) privacy and

used it to strike down state laws limiting access to contraceptives.

123 An

almost identical decision was reached by the Irish Supreme Court in

McGee v. Attorney General^124 in 1974, just one year after the U.S. Su-

preme Court’s decision in Roe. Immediately, pro-life activists in Ireland

perceived the possibility that a later Supreme Court decision could fol-

low the lead of the U.S. and extend the right to privacy to invalidate Irish

laws prohibiting abortion.

What differed in the Irish context was the means chosen for settling

the matter. Unlike in the U.S., the Irish Constitution is comparatively

easy to amend. 125 The Pro-Life Amendment Campaign (‘‘PLAC’’) was

established to bring about a constitutional amendment that would ex-

pressly protect the right to life of the unborn and preclude the legaliza-

tion of abortion by court decision. 126 While political parties in Ireland are

generally eager to avoid the abortion debate as much as possible, PLAC

was able to exploit a period of political instability to secure reluctant

election commitments to put the amendment to a referendum.^127 This oc-

curred in 1983 and, following a divisive campaign,^128 the Eighth Amend-

ment was approved by 67% of voters, inserting a provision reading:

‘‘[t]he State acknowledges the right to life of the unborn and, with due

regard to the equal right to life of the mother, guarantees in its laws to

respect, and, as far as practicable, by its laws to defend and vindicate that

right.’’^129

In a striking parallel to Roe , the Eighth Amendment did not bring

an end to the abortion debate in Ireland, but instead became the point of

departure. The political parties, having seen the toxic atmosphere pre-

vailing during the 1983 referendum, chose to avoid the issue as much as

possible for the next thirty years. No legislative framework was enacted

to clarify how the mother’s right to life (stated in the Eighth Amendment

to be ‘‘equal’’ to that of the unborn) was to be protected in cases where

the mother’s life was at risk. In the X Case in 1992, the Supreme Court

had to decide whether a fourteen-year-old rape victim who became

pregnant and was suicidal could terminate her pregnancy.^130 The Court’s

decision holding that termination was permissible immediately led to

123. 381 U.S. 479, 499 (1965).

124. [1974] IR 284 (1973) (Ir.).
125. See O’Mahony, supra note 40, at 72.
126. Ursula Barry, Abortion in the Republic of Ireland , 29 FEMINIST REV. 57, 58 (1988).
127. See TOM HESKETH, THE S ECOND P ARTITIONING OF IRELAND? 58 (1990).
128. See generally id.
129. Constitution of Ireland 1937 art. 40.3.3, http://www.irishstatutebook.ie/eli/cons/en/html# article41_4.
130. Att’y Gen. v. X [1992] 1 IR 1, 1 (Ir.).