Comment & Analysis
Nov 24, 2017

We Shouldn’t Be Voting on Human Rights

Whether in Australia or Ireland, let's not make people's right a matter for a simple majority, writes Annie Hoey.

Annie HoeyColumnist
Ivan Rakhmanin for The University Times

With a sigh of relief and a whoosh of cheers, Australia last week overwhelmingly voted in favour of marriage equality. In scenes reminiscent of Ireland on May 23rd 2015, Australians celebrated their progressive victory over conservative ideology and basked in the fact that, once again, love wins. Admittedly, this is not a binding vote, but it is hard to see how politicians will be able to ignore the very clear will of the Australian people. But what if everything hadn’t gone well in Australia? What if all those people, loving couples, families and children were rejected by their own country and fellow citizens? How can one ever come back from that? And what would be the political fallout?

While the marriage equality result in Ireland in 2015 was incredible and positive and life affirming for millions of people, it also played into a dangerous precedent. It reaffirmed the idea that a majority can vote on the rights of a minority. This, of course, isn’t the first time in history that a group of people have been asked to vote on the rights of a minority. And it certainly won’t be the last. But referendums on human rights are not the way to go and can have disastrous consequences.

According to Amnesty International, “human rights are the basic minimum protections which every human being should be able to enjoy”. As in the case of most rights-based issues, the majority has very often been behind in terms of coming on board with supporting these rights. Imagine if, in the 1960s or 1970s in America, it had been put to a popular vote whether or not to permit interracial marriage? In 1968, only one year after the US Supreme Court struck down Virginia’s anti-miscegenation law, in “Loving vs Virginia”, 72 per cent of Americans disapproved of marriage between whites and non-whites, and only 20 per cent approved.


This, of course, isn’t the first time in history that a group of people have been asked to vote on the rights of a minority

If rescinding anti-miscegenation laws had been put to the people, the vote would most likely have failed dramatically and racial tensions would only have escalated even further. It was up to the courts and legislators to step in and ensure the rights of all citizens to marry. Chief Justice Earl Warren’s opinion for the unanimous court held that “marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival”. This ruling was later cited in the cases for allowing same-sex marriage in the US.

Unlike in Ireland, where the only way to change the law is through a referendum, the situation is not the same in Australia. There is no obligation on the Australian parliament to give effect to the will of the people as expressed in a plebiscite. The vote was effectively an extremely expensive opinion poll. And while the results were incredibly positive, and the scenes across Australia were joyous and reminiscent of Ireland in 2015, it could be argued that it should have never happened at all. As it always was, and probably always will be, people had to take to the streets and beg and plead for their human rights to be recognised. In both the case of Ireland and Australia, the side fighting to protect and enshrine human rights won. But public opinion is not always so enlightened and tolerant.

In the next 12 months, Ireland will have a referendum on the eighth amendment to the Irish Constitution. The eighth amendment is an example of when rights are put to the people and the consequences are much more far-reaching than ever anticipated. Did the amendment advocates in 1983 envision an Ireland where pregnant people would lose the right to consent during their pregnancy? No other person, in no other situation in Ireland, can be forced to do something with their body against their will, but this does not apply to pregnant people.

The eighth amendment is an example of when rights are put to the people and the consequences are much more far-reaching than ever anticipated

Did they envision an Ireland where a migrant woman would be held in this country against her will, force-fed and then given a non-consensual C-section? Did they envision an Ireland where a woman would be kept on life support for 24 days after she was declared brain-dead because her unborn baby still had a heartbeat? Did they envision an Ireland where a woman would die in a hospital in Galway because the eighth amendment led to uncertainty in how best to proceed with her medical care, despite her requests for a termination and the fact that she was severely ill? Did they envision an Ireland where thousands upon thousands of women would be forced to leave our shores in order to access basic reproductive healthcare?

Maybe these amendment advocates did indeed dream of a draconian Ireland where pregnant women lost their rights to consent, where our shame would be shipped across the sea. I like to hope they did not envision a horror story where gruesome deaths or inhumane medical practices are becoming the norm.

It is a happy time for LGBT Australians and their friends and family. And we had a similarly happy day in Ireland in 2015. In both of those instances, the majority voted to bestow a basic human right on to a minority. Let us hope that next year, when Ireland takes to the polls again on the issue of rights, that we do not find ourselves looking into an unknown future where due regard to bodily autonomy is abandoned, and women’s bodies and rights are once again cast aside.

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