Congrats Ireland, but should fundamental rights be decided by popular vote?

Minority rights shouldn’t be up for public debate
Photo: The Irish Labour Party

In an unprecedented and historic victory, Ireland became the first country to approve same-sex marriage by a popular vote this past Saturday. Until now, the country’s constitution had defined marriage as being between a man and a woman.

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Despite opposition by the Roman Catholic Church, 62 per cent of votes cast were in favour of legally allowing same-sex civil marriage in a country that only 22 years ago considered homosexuality a crime.

Abortion remains illegal in Ireland, so let’s not be too quick to celebrate the country as a bastion of freedom and evolved human rights just yet. Still, after the referendum I was one of those who quickly congratulated the Irish on a job well done.

Yet there is something deeply disconcerting about the rights of a minority being voted on by a majority.

Referendums lend themselves nicely to debating and determining constitutional matters (adopting or amending a constitution) or choosing whether to secede (hello Scotland and Quebec). These decisions affect all citizens of a country in some shape or form. But why should basic human rights be subjected people’s prejudices in a popular vote? Why should one’s approval or disapproval have any legal weight when it concerns someone’s personal life?

Let me put it another way. What if the white majority in Alabama had been allowed to decide, via a referendum in 1965, whether blacks would have the right to vote? What if Abraham Lincoln hadn’t used the Emancipation Proclamation in 1863, but had instead allowed southern whites, whose entire fortunes depended on the economic institution of slavery, to vote on it instead?

History has taught us that the correct conclusion cannot always be arrived at by popular vote, which can be manipulated by propaganda, populist opinion, and intimidation.

In 1936, a single-question referendum asked voters in Germany if they approved of a single party list composed exclusively of Nazis and Nazi sympathizers for the German Parliament. They did.

In fact, Adolf Hitler used plebiscites and referendums (coupled with state propaganda and outright lies) so extensively to get what he wanted that Germany has not used such tactics federally since World War II. In the hands of a skilled orator and manipulator, referendums can be dangerous.

Democracy may be defined as government by the people and the rule of the majority, but the protection of everyone’s human rights is an integral part of the system.

“Tyranny of the majority” refers to the oppression of political minorities by the majority. The rights of those minorities should be considered essential and non-negotiable. Is it not troublesome for citizens to vote on these rights the way viewers vote for American Idol contestants?

Advocates for referendums state that in some instances it’s preferable and much less complicated for decisions to be taken from elected representatives and put into the hands of the people. Perhaps, but that gamble should never be undertaken with human rights.

Trying to force a referendum to forbid unions between same-sex couples, conservative and religious groups in Costa Rica collected over a hundred thousand signatures in favour. The Supreme Court categorically rejected such a referendum, stating that the rights of minorities cannot be decided in a process imposed by the majority. This consideration supported the main argument of those opposed to the referendum as a violation of human rights.

No system is perfect. One must be cognizant of the dangers lurking in even the most well-intentioned paths. That’s why I don’t believe in censorship, even of hate speech, because too often it’s the powers that be who define what constitutes hate speech, opening the door to widespread and pernicious abuse of civil liberties and free speech under the guise of protecting us.

As U.S. political commentator and author Rachel Maddow once said, “Here’s the thing about rights; they’re not supposed to be voted on. That’s why they call them rights.”

Arguably marriage is a social construct and needs to be decided on like anything else, but that would require conveniently ignoring the obvious: that one’s right to natural dignity, fairness, and happiness should supersede all that.

It’s great that Ireland’s gamble worked out in favour of equality and human rights, but what if it hadn’t? Would we still be celebrating the triumph of popular voting right now? It’s a legitimate question to ask.

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