There is no doubt the movement for marriage equality in the Western world is gathering pace at a rate that would have been unthinkable ten or even five years ago. If you had told me in 2010 that the USA, Great Britain, Ireland, and even the Pitcairn Islands would have legalized equal marriage by now, I would have struggled to believe you. For some, this debate has dragged on for decades too long, ever since the first same-sex marriage activists applied for marriage licenses in Minnesota in 1970. For many others, this moment has come as a shock, without the civic conversations that often accompany huge social changes. Marriage, for all couples, is a fundamental right as citizens of a state into which they pay taxes, work, and contribute to the fabric of social society; we are foolish, however, to assume that once that right has been enshrined in law that it cannot be taken away. It can, it has and in some cases it will be.
It has been a hard fought and often brutally personal and civilly divisive battle for marriage equality. Marriage rights have been won in the courts, through legislation, referendum, or constitutional changes, but those same mechanisms that can be used to enable those rights can also be used to remove them completely. Not so long ago, the Australian Capital Territory voted to approve the Marriage Equality (Same Sex) Act in October 2013, which granted thousands of same-sex couples in that state the right to marry. The law, however, was challenged by the Australian federal Government in Court and was struck down as it was incompatible with the Australian Constitution, which forbids marriage between any couples that aren’t made up of one man and one woman. By December 13, just six days after the bill came into effect, hundreds of same-sex couples that had married in Canberra were no longer married. Their marriages were declared void and nearly two years later the Australian Government has not legalized equal marriage by amending the Constitution, and instead has declared their intention to hold a referendum on the issue some time in 2016.
Same sex marriage wasn’t always explicitly banned in some jurisdictions of the United States before the June 2015 Supreme Court judgement that legalized it nationwide. In 2004, the states of Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah all approved constitutional amendments that defined marriage as the union of one man and woman by way of public referenda on the matter. Utah is a particularly interesting case in that in December of 2013, the District Court for Utah ruled that the state’s constitutional ban on same-sex marriage violated the 14th Amendment of the United States Constitution and marriage licenses were issued right away. However by January 6, the US Supreme Court states the ruling and marriage licenses in Utah issued to same-sex couples were no longer valid. By June 2014, the Tenth Circuit Court of Appeals lifts the stay and same-sex couples can marry again. This might say more about the complexities of the US Legal system than anything else, but it proves my point that equal marriage rights are not always safe from those who want to consign them to history.
That is what is happening right now in Slovenia. A tiny, almost landlocked nation with a population of just over two million will head to the polls on December 20 to decide whether a bill passed in March that legalized same-sex marriage is legally valid. If the “no” side wins the day, as many predict it may, then same-sex couples in Slovenia will again be without the same equal recognition that their relationships deserve in the eyes of the state. Slovenia will be the second country to legalize same-sex marriage via way of referendum if the “yes” side wins, after the Republic of Ireland voted overwhelmingly to do the same in May of this year. It is not the first time that a territory has legalized equal marriage by way of a referendum, either. In November of 2012, the same day that the US re-elected President Barack Obama, voters approved state legislation in Maine, Washington, and Maryland that granted the right of marriage to same-sex couples in those states. Whilst public opinion will largely remain in favor of legislation, legalizing same-sex marriage is approved by voters, and it is not impossible that elements that wish to remove those fundamental rights and protections will muster the support to do so.
There is nothing stopping future Parliaments of the United Kingdom, Canada, Spain, France, or even Iceland (where support for LGBTQ+ rights is amongst the highest in the world) passing legislation to repeal those laws that enable equal marriage. Likewise, those activists who don’t believe that Republican Presidential candidates who want to repeal the ruling in Obergefell v. Hodges will be able to do so are fooling themselves. The pace at which same-sex marriage became legal in the United States was unprecedented. In 1996, when DOMA was implemented, only 25% of citizens in the USA thought same-sex marriage should be legal and according to a July 2015 Associated Press-GfK poll that number has only moved to 42% in favour in the span of nineteen years. That’s hardly a ringing endorsement for the move by the Supreme Court and future rulings could invalidate it if the Supreme Justices are replaced with Republican nominees.
People can surprise you, though. Nobody would have believed in 2010 when the Dáil Éireann in the Republic of Ireland legalized the Civil Partnerships that just five years later, voters would tell their Government to rectify the Constitution to include same-sex couples in the institution of marriage. In 2004, only 52% of the British public supported some legal recognition of same sex unions, but not full marriage equality. The introduction of the Civil Partnership Act 2004 in the UK paved the way for a reasoned and informed debate on the moral fibre of what it means to be married, why everyone should enjoy that right and legislation helped to change public opinion so that by 2013 there was little public opposition outside of religious movements to the legalization of marriage equality in England and Wales.
Legislation should affect social change and not referendums. To leave complex social issues to a public vote is an abdication of political leadership and courage, especially when there is no constitutional impediment for LGBTQ+ rights. Putting the rights of a minority in the hands of a public vote sends the message that those rights are somehow less important than others - that they can be decided on the flip of a coin and affected by the propaganda and whims of an ill-informed public debate. That could have easily happened in Ireland and could still easily happen in Slovenia, Australia, and anywhere else that lacks the backbone to extend an olive branch to a wronged minority for fear of losing votes.
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