As marriage equality becomes a legal reality in an increasing number of Western countries, controversy and debate has arisen not just around the substantive issue, but also around the mechanism through which the debate is resolved: through the legislature, the courts, or by popular vote. During 2015, Ireland became the first country to introduce marriage equality following a national referendum, while the U.S. became the first to do so directly on foot of a national court decision. On the one hand, some criticized the use of the courts in the U.S. as inherently undemocratic, since it restricted the decision-making power to just nine unelected judges. In contrast, some saw the use of the referendum in Ireland as almost too democratic, in that it used a purely majoritarian process to decide on whether a minority group should enjoy a human right on an equal basis.
Notwithstanding these criticisms, this Article argues that the mechanism used for settling the marriage-equality debate in each country was inevitable, and that it was appropriate to that country. The resolution of the marriage equality debate followed established patterns in the search for a decisive victory in a religious-moral controversy and has close parallels with the abortion debate in each country. Other countries have resolved such issues by way of ordinary legislation; and legislation has the advantage of navigating a middle road between the contrasting disadvantages of court decisions and referendums. This may well have been appropriate to those countries; but it does not mean that it would have been the appropriate route for either the U.S. or Ireland, where certain fundamental political disputes tend to be resolved through constitutional politics rather than ordinary politics.
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