The Legitimacy of Referendums: Abortion and Same-Sex Marriage

Referendums on social questions have been attacked by all sides for being unnecessary or actively harmful. But such criticisms beg the question. It is because referendums decide between positions that are fundamentally at odds that makes them necessary in the first place.

Objections to Referendums on Same-Sex Marriage and Abortion

In 2015 Ireland held a referendum on whether same-sex marriage should be allowed. Over 60% of the population voted in favour. Same-sex marriage was now legal in Ireland, a country that had only very narrowly allowed divorce in 1995. However, not everyone was happy. Some commentators argued that the issue should not have been decided by referendum. Their argument was that this concerned minority rights and that such things should not be voted on by the majority. As one Irish advert powerfully put it, you should not have to ask the permission of 4 million people before you get married:

This concern was echoed in Australia, where there is currently a referendum on same-sex marriage. There, supporters of same-sex marriage objected to the vote on the ground that human rights issues should not be decided by referendum:

The granting of fundamental human rights should never be the subject of a survey. In addition to feeling let down by the Federal Government, I resent having my rights, my relationship and my “lifestyle” now being talked about from one end of the country to the other. I have heard people say “they should be able to marry” and “they shouldn’t be able to marry”.

Ireland is now about to have another referendum, this time on abortion. The 8th Amendment to the Irish Constitution provides that all members of the homosapiens species, whether born or not, have the right to life. This means that abortion is illegal except in cases where the pregnancy threatens the life of the mother. A referendum to repeal it will now be held in 2018.

Again the same arguments about the legitimacy of deciding such a question by referendum have been made. For the pro-life side, this is holding a vote – in which the unborn do not have a say at all – on whether they should be stripped of their most basic human right.

A similar point has also been made by those supporting the repeal of the 8th Amendment

What is the abortion controversy really about?

The trouble with all these arguments, both on abortion and same-sex marriage, is that everyone is begging the question. Take abortion. If the right to life is established by mere humanity or – if you want to get technical – by the intrinsic capacity for high-level cognitive abilities, then abortion is a large scale moral catastrophe. It is, in England alone, 200,000 state-sanctioned (and funded) homicides a year. Hence, voting for it would indeed be a wrongful stripping of a section of humanity’s most basic rights. It is not something a referendum should be held about.

But consider the converse possibility. What if human life did not have value until sentience or – if you still want to be technical – the development of immediately exercisable cognitive abilities? It would then follow that the 8th Amendment wrongly awarded the right to life to the unborn. Now that in itself might not be a problem. Our society is wrong in thinking that modern art has value but nothing bad follows from that mistake.

marcel_duchamp

Society considers this be valuable art. It is not. But that mistake doesn’t matter (that much)

But obviously, abortion is a far more consequential issue than the merits of Duchamp. Ireland’s incorrect judgement that the unborn lives have value has lead to a massive curtailment of woman’s autonomy. Pregnancy is not fun and to prevent a woman from terminating a mere lump of cells is cruel in the extreme. Basic human rights require that this stops and this is not an issue which should stop only if 50% of the population agree. Hence, voting on the matter is inappropriate (although it might be legally required).

But the issue is that both sides are begging the question. Both sides have a key normative premise – about the moral status of the unborn – about which they disagree. If the pro-lifers are correct then legalising abortion would wrongly strip the human rights of the unborn and hence voting on the matter is wrong. If the pro-choice side is correct, the law wrongly denies basic bodily autonomy to women, this should be restored as a matter of basic human rights, and is not dependent on whether 50% of the population agree.

But the problem is the uncertainty on that normative premise and this is what the Referendum is deciding. The question is not “Given the foetus has the right to life, should be law allow abortion?” or “Given that the foetus has no value, should the law stop forcing to carry pregnancies they do not want?” Rather the question is, “What value does the foetus have?” This is a very difficult question of ethics on which society has to have an answer and has to get right (if it gets it wrong either there is a large scale moral catastrophe). In the old days, we would settle such questions by force. Now we have liberal democracy to settle such questions. It is a far better system. It is right that the Irish people get a vote on the matter. Let’s just hope they get the right answer.

What is the same-sex marriage controversy about?

What about same-sex marriage though? Is the issue not different there? After all, abortion involved the woman and the unborn. But with SSM it only concerns the two parties involved, right? Again, such reasoning begs the question from the point of view of the pro SSM campaign. The argument from equality has a suppressed premise. It assumes that marriage is conceptually capable of being extended to same-sex couples. There are some things which by their very nature exclude others and in such cases, the exclusion is not discriminatory. Take primary schools, for example. The very nature of a primary school prevents adults from attending but such an exclusion is clearly not discriminatory. So the argument for SSM has to have two premises: (1) marriage is conceptually capable of extending to same-sex couples, (2) equality.

But it is the first premise which opponents of same-sex marriage dispute. They argue that the true conception of marriage is that it is a union intrinsically tied to reproduction and, hence, the very notion of a same-sex marriage is a category mistake. On the other hand, supporters of same-sex marriage rely on a conception of marriage according to which it is an expression of love. Under such a view marriage can be extended to same-sex couples (“love is love”).

Since marriage is not a purely private matter but rather is an institution promoted by the State it is for all citizens to decide which conception of marriage the State ought to promote. Furthermore, such a decision has consequences for society at large, for the institution of marriage, for children, for other gay people who do not wish to marry, and for other liberal freedoms. Whether such consequences are good or bad is a separate issue but the fact remains it affects more than just the two people involved. Hence, the decision of that question by referendum is not inappropriate.

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Rajiv Shah is a PhD candidate in Law at the University of Cambridge. Read Rajiv’s last article here.

Enjoyed this article? Subscribe to the Quad. Featured image by Nick Youngson under CC BY-SA-3.0.

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