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Tomorrow’s Equal Marriage referendum is both Politically urgent and Philosophically Irrelevant at one and the same time.

May 21, 2015

yes

Vote Yes.  Oh please vote Yes.  It’s really important.  Indeed, if reading this blog is delaying you from voting yes (assuming the polls have opened) then stop reading it and go and vote Yes.  Then come back and finish it.

But there’s an important sense in which the vote tomorrow “means” nothing, an important sense in which the human rights it’s talking about are in no way affected by the voting process.  I’m confident that the vote will be won by the “Yes” campaign but there are some things that ultimately shouldn’t be down to a majority vote.

Here is John Stuart Mill on majoritarianism and personal liberty.

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant — society collectively, over the separate individuals who compose it — its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

Everyone straight person I know in Ireland is going to vote “Yes” in the Equal Marriage referendum.  But why should gay people need the electoral permission of straight people to affirm their essential freedoms?

The point that Mill was getting at was that if the freedom of an individual does not affect the freedom of others, then that freedom should not be subject to majoritarian coercion – whether legal, social or psychological.

It’s necessary, perhaps, to point out that Jewish people were in a minority in Nazi Germany.  The Nazis asserted a version of majoritarianism to persecute them.  The will of “the people” is (as Mill might have anticipated) not infrequently used to crush people.

The “No” camp won’t grasp this point of course, because they feel that somehow their own freedoms are reduced if others enjoy the same freedom.  It’s a very “zero-sum” view of freedom which believes that if gay people are more free then it must somehow be at the “expense” of straight people.  The fact is of course that nothing about Equal Marriage threatens the belief systems of any straight person.  And if people choose to believe that two people cannot be “really” married in the sight of God, then nothing in Equal Marriage threatens either this belief or in God’s authority (should She choose at some point to intervene and make Her feelings known more transparently).  The freedom asserted by homophobes is an impossible freedom, defined entirely negatively – a freedom to be protected from the knowledge that other people enjoy the same freedom that they do.

The defense of minorities is not, ultimately or necessarily about being “nice” or “generous”.  It’s in everyone’s long term rational self interest, since everyone is in a minority.  The shifting exigencies of a phobic political culture might lead to anyone being identified as being part of an undesirable minority by an oppressive regime claiming majoritarian support.

Liberty and Equality under the law (should) rest on something better than mere majoritarian arithmetic.  When the announcement is made on Saturday that a majority of Irish voters have said “Yes” to Equal Marriage, this should be seen not as “giving” or “conferring” a right, but rather recognising a right that is implicit in the concept of legal equality.  And without the concept of Equality under the Law there can be no real “Rule of Law” because if political considerations influence the application of Law then those political consideration have a primary causal function that compromises such sovereignty.

Anybody who fails to defend or advance the cause of Equality under the Law is, therefore, undermining the idea of Rule of Law.

Of course, “Equality under the Law” more generally speaking remains an aspiration rather than a reality.  In the UK, the Government has recently announced its contempt for the idea of Rule of Law and even Law and Order by making such drastic cuts to legal aid as to render it more and more transparent that “Law” is an instrument not a source of authority, that the Law exists to protect the powerful from the weak, and that access to money should be the basis of legal protection.  In no nation that I know of, is “Rule of Law” a fully realised actuality, because I know of no nation where money doesn’t affect legal outcomes.  This shows up the limits of the John Stuart Mill’s vision of negative liberty, the limits of a purely legal and chastely liberal definition of liberty.

However, there is nothing to be gained by cynicism.  Rule of Law may be a goal rather than a reality, but it remains a noble aspiration, something to bequeath to the next generation.  And Rule of Law, together with Equality of the Law is a central concept for any nation attempting to define itself as a Republic.  Equal Marriage is therefore an essential republican campaign, a campaign that strengthens the positively republican aspects of any given nation.

Saturday will be a good day.  Not because of what voting will have performed but because of what voting will have confirmed, not because straight people will have given gay people marriage equality but because Ireland as a whole will have recognised something implicit and rightful about any definition of legal and civil entitlement.

And in a looser, wider, more pervasive sense – the idea of a high profile vote in favour of anything with “Equality” in the title is going to make something of a change.

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