Two paths to equal marriage

There was a certain wistful jealousy in the way Canadians watched Ireland vote in favour of equal marriage on the weekend. Sure, we did it earlier, but in some ways, they did it better. They had a big national discussion, and when it was over and history made, they threw a party befitting the occasion.

But as boring as Canada’s court-driven changes have been, they have avoided the difficult question raised by Ireland’s plebiscite: If rights can be voted upon, do they depend on the will of the majority? If Ireland’s vote “gave” people the right to marry, that is not a “right” in any absolute sense; it derives from the shifting zeitgeist, not from the imperatives of human reason or some other abiding source.

The view of rights made famous in the U.S. Declaration of Independence — “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights ...” — cannot recognize a plebiscite’s authority on such fundamental questions, no matter which side wins the plebiscite.

A vote cannot determine whether gay people have the right to marry. Gay people have the right to marry, full stop. They have that right in Belize and Saudi Arabia, just as they have it in Ireland and Canada. They had that right 500 years ago, even if no country recognized it. What if the vote had gone the other way in Ireland? Would that have changed the fact that the

Countries can vote to change their laws … to recognize rights, not to confer them.

law was unjust? Shall we have votes on whether women are human, or on whether slavery is wrong?

Still, bad laws have to change somehow. Countries can vote to change their laws or constitutions to recognize rights, not to confer them. While rights do not derive from the majority will, there is always an interplay between popular opinion and the evolution of law. It is no coincidence that the courts recognized same-sex marriage in Canada at roughly the same time popular opinion changed. If the laws of a country do not leave room for the courts to strike down unjust laws, or if the human beings who sit as judges in the courts get it wrong, there is nothing standing in the way of the people changing their own laws.

Indeed, it is better for the country when the political culture changes in parallel to legal structures, when a country can go through a historic change willingly, rather than being dragged (or mock-dragged) into it. Canada’s government has got into the bad habit of drafting laws that curtail fundamental rights, knowing the courts are there to reverse its worst excesses, in time.

This petulance is bad for the political culture as a whole. Instead of framing rights as something we can proclaim loudly and joyfully as a nation, this government (and to an extent, its predecessors) have turned rights into the unpleasant duty imposed on us by a court that the government is hell-bent on portraying as unwise, perhaps even illegitimate.

There is a role for the institutions of democracy to play in the long walk to freedom. The people’s representatives do not have the power to confer or remove fundamental rights, but they do have the power to make their country’s laws as perfect a reflection of those universal truths as they can be. If they shirk that responsibility, the people have a duty of their own, to hold those representatives to account.