ANTHONY L. HALL, ESQ.
FLORIDA COURIER COLUMNIST
It might seem a surreal joke, but Ireland became the first nation in the world to legalize gay marriage in national referendum last week. Pope Francis himself appeared to bless this seminal event almost two years ago when he said, “Who am I to judge them (homosexuals) if they’re seeking the Lord in good faith?”
Despite the pope’s apparent blessing, leaders of the Irish Catholic Church mounted a crusade against this referendum. These are the very leaders who the pope has publicly criticized for showing more devotion to religious traditions and practices than to the word and spirit of Almighty God.
This liturgical dissonance is thrown into sharp relief when one considers that their traditions and practices include condemning homosexuality while engaging in homosexual acts themselves; providing indulgences for priests who sexually abuse little boys; and/or knowing full well that a “gay cabal” has always wielded dogmatic power in their Holy Curia.
This infernal legacy of sodomitic hypocrisy accounts not only for the “hidden exodus of Catholics becoming Protestants,” but also for the growing disconnect between Church leaders and diehard members, which the outcome of this referendum reflects.
Laws vs. referenda
I fear the Irish have set an untenable and misguided precedent. The right to marry is as fundamental as any human right. And as the late U.S. Supreme Court Justice William Brennan might have opined, it offends all notions of fundamental fairness, which is essential to the very concept of justice, for members of any group to have the exercise of their fundamental rights subject to a referendum.
For example, it does not offend to have a referendum on whether Scotland should leave the United Kingdom, or whether the UK should leave the European Union. There is no fundamental right at stake.
The result would affect everyone in the country equally.
By contrast, if the right to marry across racial lines had been put to a referendum in the United States during the 1960s, the vote against interracial marriage would have been as decisive as the vote for gay marriage in Ireland was on Friday.
It’s far more preferable to have fundamental rights codified by legislatures and/or affirmed by courts – as nineteen other countries, including South Africa, Uruguay, and The Netherlands, have done with respect to gay marriage.
In the United States, gay marriage is legal in 37 states: 26 by courts, 8 by legislatures, and only 3 by referendum. But as the fight for abortion rights demonstrated, denying citizens in any state any fundamental right, which citizens in other states enjoy, presents all kinds of constitutional challenges.
Soon legal nationwide
The U.S. Supreme Court will hand down a consolidated ruling on several gay marriage cases this summer. I predict it will be a unanimous ruling in favor of the fundamental right to marry nationwide, relying heavily on the precedent the court set in Loving v. Virginia in 1967:
“Marriage is one of the ‘basic civil rights of man [and woman],’ fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial [or gender or sexual orientation] classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”
Members of any minority group demanding legal recognition and protection of their fundamental rights should seek recourse in the courts, not at the ballot box. Accordingly, with this procedural reservation, Ireland’s referendum on gay marriage is AFFIRMED.
Anthony L. Hall is a Bahamian native with an international law practice in Washington, D.C. Read his columns and daily weblog at www.theipinionsjournal.com.