Gay marriage in Ireland

[Angra Mainyu]

This is getting convoluted. My post is the top of this tangent (after the OP, of course). It is quoted in Tom's post which you subsequently quoted. My post states that a public vote on minority rights is not something to boast about. From there, Tom replies adding a point about voting on minority rights rather than having them just enshrined in law isn't so great. You respond that in this case, the referendum was required for constitutional protection of the right to same-sex marriage; however, as a weaker option, legislators could have passed a law which didn't have that same constitutional protection. You asked "isn't it also problematic if the matter is not decided by a majority of the public but by a majority of lawmakers?" While my paraphrasing may be a bit shitty or inaccurate, the point is, at this point in the conversation, we're all pretty much in the same realm.

This is where the divergence seems to happen:
You mention how in some countries the lawmakers may be more inclined to suppress rights, in others the people, and in others they may be equal. You then stated "In general, I don't see why one method is particularly better or worse than the other, in terms of guaranteeing rights."

When I replied, I was still in the same general realm in which I started which is why I stated 'the referendum' and not 'referendums'. You were, by that point apparently, entertaining Russia and Uganda. Perhaps it would have been fairer to say 'we are not talking about the all of same things anymore' rather than make you alone the subject of the sentence, but the statement I made remains true.

I mentioned Russia, Uganda and Nigeria as examples later, but I was considering the general case – namely, a system in which the choice is made by a public vote vs. a choice is made by the vote of some lawmakers -, as one can see in my first post here,, where I was talking about what may happen in some countries, in other countries, etc. (in particular, I wasn't objecting to your claim that it wasn't something to boast about).

If your “because” reply was about the Irish referendum, you misunderstood my point. But I took your reply to be on point and about the general case as well, since after you said “the referendum”, you considered other systems, and said “there is a different degree of transparency and accountability to the process (though that probably varies from system to system somewhat).”.

In any case, leaving aside any previous misunderstanding, below I'll address the substantive points you raise:

"Like the conditions..." is vague.

So are the conditions to pass a law. More precisely, they vary from system to system. But the point I was trying to make is that referendums also have to meet constitutional standards.

A shitty bill proposal and a shitty referendum are both possible. What I stated of the former is that there are professional expectations which apply to elected representatives with regard to voting which do not apply (or at least apply to a lesser degree) to the general public. Both elected representatives and citizens should read proposals before voting, they should listen to oppositional views, they should vote on the merits of the proposal with regard for the responsibility of voting and how their vote fits with their constitutional values. Both groups can get away with not doing those things, but both the opportunity and expectation of an elected representative to do so are higher.

But referendums are also called by elected representatives, or else they are proposed by a certain percentage of the population and a court or specialized body needs to check that they pass constitutional muster.
For example, in the case of Ireland, a constitutional amendment needs to be passed by both houses of parliament before a referendum is held, and only if the proposed amendment also passes the referendum, it becomes part of the Constitution.
So, you have both the checks in parliament – which are no weaker than in the case of laws -, and only after that, the public gets to vote.

An MP's 'bosses' in practice are subject to the same considerations as the MP themselves, generally. This was a consideration when I posted already. I don't know how it works in Ireland exactly, but in Canada a Party Whip exists to maintain discipline within parties which can affect how an MP votes. This does not alter the fact the expectations placed upon an MP are higher when they deal with proposed legislation as an elected representative than those placed on ordinary civilians in a referendum.

“Higher expectations” is vague, so let's consider two cases:
1. If you're talking about expectations that the proposed piece of legislation, constitutional amendment, etc., will be constitutional – in the case of an amendment, that it will meet the previously specified conditions for an amendment -, then the expectations (at least, the expectations of most people; if you're talking about someone else's expectations, please clarify) aren't higher in the case of a bill or amendment passed by lawmakers than a similar instrument passed by lawmakers or checked by a court or specialized body but which is submitted to a referendum.

2. If you're talking about higher moral expectations, I don't think that's usually expected, but assuming it is, my point is that that works both ways, since anti-gay bigotry – and generally suppression of rights – are very often motivated by false moral beliefs, or at least those supporting them believe that they're motivated by those moral beliefs.
For example, people who are publicly known as Catholics or Evangelicals and are casting a public vote and are being watched are more likely to feel pressure to vote against the rights of gay people because otherwise they can be accused of immorality by their own avowed standards, hypocrisy, etc., than people who are casting a secret vote, and can go with whatever they feel.

This was never about results of 'for' or 'against' votes. This was about minority rights issues ideally not being subjected to the largely unchained will of public opinion. Even if a politician is against gay rights, it still isn't usually in their best interest to propose or back minority rights legislation which will be defeated or later overturned by a court ruling, especially if they want to climb higher. What do you really gain from that when the majority of the voting populace is not sympathetic to your views? The sympathy of people who were probably already voting for you? This was a fairly unimportant point in my eyes though.

You mean propose or back legislation against minority rights?
In any case, I'm talking about constitutionally valid pieces of legislation or amendments.

As for what you gain, that depends.
For example, when the majority is not sympathetic to your views, you can still pander to the niche of voters who are sympathetic to your view, including organizations that are particularly vocal about it – like the Catholic Church or Evangelical Churches in some cases. Maybe there is a closeted majority against bigotry, but stating that publicly would make the person the target of accusations of hypocrisy, conflict with powerful organizations, etc.
Or it may be that the majority is on the bigot's side, but that might change if the matter is publicly debated prior to a referendum. But on the other hand, if they just pass the law or amendment, there is much less public debate.
Or it may be that the majority is not on the bigot's side, but the majority of lawmakers is – there are systems in which a party or coalition get over 50% of the lawmakers, even if they got less than 50% of the votes in the elections, provided that they got more votes than any other party, or they did so in some parts of the country, etc., depending on the voting system.
Or it may be that even if over half the population are against gay rights (or some other rights), most of them don't care enough to go and vote, or maybe they do, but the referendum requires a special majority, etc.

Of course, things might go in the other direction, and referendums might help the bigots. What I'm saying is that it can go both ways, depending on the specific social context, and there is no in principle advantage of having referendums over not having them.

 

[krypton iodine sulfur]

...you considered other systems, and said “there is a different degree of transparency and accountability to the process (though that probably varies from system to system somewhat).”

Ireland is the other system from my perspective. I know how it works to a point, and that it is similar to the Canadian system, but I cannot account for all particulars on how transparent and accountable Irish politicians are compared to what I know most intimately.

“Higher expectations” is vague...

It is literally what they are appointed to do. They are paid and provided resources explicitly to deal with the subject matter of governmental affairs and legislative duties. The general public has no such obligation and less resources at their disposal. Whether it is a referendum or proposed legislation, the proposal could contain items which are unconstitutional, or it could be propped up with considerations which are not in keeping with constitutional values. In this case, it is not unconstitutional to not explicitly include same sex marriages in the constitution, yet not doing so on the basis of disagreeing with same-sex marriage is not in keeping with constitutional values such as equality before the law. A politician failing to consider this context is failing their responsibility and obligations as a paid and elected official, but a public citizen is not.

As a minority, this idea that instead of having the people tasked and resourced to handle legislative matters and put their names and reputations behind their votes, you'd just be asking the general public to decide, I'd say 'Why the fuck are my neighbours allowed to weigh in on issues concerning my rights with whatever arbitrary criteria they consider valid?" In this case, the answer is that the constitution cannot be amended otherwise, but it's unfortunate. I would greatly prefer it go through legislators who, even if they rule against me, must present their position in a way which is consistent with the legal principles of the land and the obligations of their office. That way, when (let's say) a certain Senator Don Plett* from Manitoba offers arguments on why he gutted a transgender rights bill, I know what those arguments are and who made them. Everyone knows, and the reasons he provided are demonstrably bad. His behaviour is demonstrably bad, and it can be called out directly in the process of sorting out this legislation.

*I'm not expecting you to address this specific example. I'm just saying in a roundabout way that I have dealt with this very sort of thing personally in a comparable system with similar constitutional values.

 

[Angra Mainyu]

It is literally what they are appointed to do. They are paid and provided resources explicitly to deal with the subject matter of governmental affairs and legislative duties. The general public has no such obligation and less resources at their disposal. Whether it is a referendum or proposed legislation, the proposal could contain items which are unconstitutional, or it could be propped up with considerations which are not in keeping with constitutional values. In this case, it is not unconstitutional to not explicitly include same sex marriages in the constitution, yet not doing so on the basis of disagreeing with same-sex marriage is not in keeping with constitutional values such as equality before the law. A politician failing to consider this context is failing their responsibility and obligations as a paid and elected official, but a public citizen is not.

In order to reduce vagueness, I considered two cases, but you haven't specified which ones you have in mind. Based on your reply above, it seems it's about making sure their proposals are constitutional. But in that case, as I said, the expectations (at least, the expectations of most people; if you're talking about the expectations of someone else, please clarify) aren't higher in the case of a bill or amendment passed by lawmakers than a similar instrument passed by lawmakers or checked by a court or specialized body but which is submitted to a referendum.

Of course if the constitution already guarantees equality before the law to the extent that it protects from unjust discrimination based on sex, then allowing state-sanctioned opposite-sex marriages but not same-sex marriages would be unconstitutional, as long as that is done by law and not by amendment. If the constitution does not guarantee that, it will not be so (not on that basis).

Moreover, a constitutional amendment that respects procedures and bans same-sex marriage will not be unconstitutional, since that would be a modification to the constitution that would specify that the equal treatment does not extend to marriage of people of the same sex.

Actually, a politician failing to consider that context would be failing their constitutional obligation if they vote for a law (not an amendment) banning same-sex marriage, but a politician who is against same-sex marriage will probably consider that context and conclude that equality before the law – at least, as he understands it - is not violated, since it's only against unjustified discrimination, not against all discrimination (e.g., not allowing 5 year old children to vote is not a violation of equality before the law, for example), and if the politician supports a constitutional amendment, he'll probably think that equality in this case is a bad thing and shouldn't be allowed. On that note, politicians who support a ban on same-sex marriage usually believe that they do have reasons, and they argue in support of those claims.

On the other hand, I would say that a citizen voting against same-sex is probably violating their moral obligations, even if not their constitutional obligations.

As a minority, this idea that instead of having the people tasked and resourced to handle legislative matters and put their names and reputations behind their votes, you'd just be asking the general public to decide, I'd say 'Why the fuck are my neighbours allowed to weigh in on issues concerning my rights with whatever arbitrary criteria they consider valid?"

But similarly, one may ask: why the fuck are the people who were voted in by your neighbors (perhaps, promising to uphold Catholic values and/or Christian values, promising to support so-called “pro-life” legislation, “defense of traditional marriage”, etc.) allowed to weigh in on issues concerning your rights with whatever arbitrary criteria they consider valid?

Because surely those politicians who are vocally claiming that they will defend traditional marriage, etc., do consider their criteria valid, and do consider that this is a case in which there are good reasons to make a distinction in the law. And if they're voting for a constitutional amendment, they're not doing anything unconstitutional if they follow whatever amendment procedure there is and ban same-sex marriage. They would be acting immorally, but not unconstitutionally, just as voters would be acting immorally but not unconstitutionally if they were to do the same.

In this case, the answer is that the constitution cannot be amended otherwise, but it's unfortunate. I would greatly prefer it go through legislators who, even if they rule against me, must present their position in a way which is consistent with the legal principles of the land and the obligations of their office. That way, when (let's say) a certain Senator Don Plett from Manitoba offers arguments on why he gutted a transgender rights bill, I know what those arguments are and who made them. Everyone knows, and the reasons he provided are demonstrably bad. His behaviour is demonstrably bad, and it can be called out directly in the process of sorting out this legislation.

They're demonstrably bad, but not more than much of the behavior of Yahweh, Moses, Joshua and Jesus going by the biblical description, and not more than the claim than the arguments given by Edward Feser and other Thomist philosophers against sex other than between husband and wife are demonstrably bad, etc. But of course, all those views are defended by clever philosophers, politicians, etc.

The point is that many things are demonstrably bad, but the demonstrations will not persuade everyone, and sometimes will not even persuade most, and sometimes most will be persuaded that they're demonstrably good, and so on (apart from the fact that the vast majority of people can't demonstrate they're bad; even most activists would be defeated in a debate by a clever philosopher on the other side).

If you call them out on their claims, they can counter call you back, with arguments that will be appealing to their crowd, including their own pundits, whether philosophers, theologians, or political experts.

Moreover, if they refrain from voting against same-sex marriage (or some other vote against the rights of some people, minority or not), they can be called on that if they promised otherwise to the part of the public that voted for them, or if they claim to accept the moral guidance of the Catholic Church, or whatever they promised.

On the other hand, anonymous people may well just change their minds and vote for same-sex marriage, without fearing backlash over – even in the presence of peer pressure to vote otherwise, since the vote is secret.

There are questions like which crowd is bigger among the public vs. among the politicians who get to vote in places where the public doesn't, or how many people would be willing to be closeted anti-bigots vs. closeted bigots if the public gets to vote, etc., but as I said, I don't see any particular advantage of not having a referendum vs. having one, in general. It seems to depend on the case.

 

[krypton iodine sulfur]

But similarly, one may ask: why the fuck are the people who were voted in by your neighbors (perhaps, promising to uphold Catholic values and/or Christian values, promising to support so-called “pro-life” legislation, “defense of traditional marriage”, etc.) allowed to weigh in on issues concerning your rights with whatever arbitrary criteria they consider valid?

Because they cannot use arbitrary criteria; that's not their job. They have to use legally valid considerations consistent with constitutional values which, either by the party or the individual proposing legislation, will be disclosed during the proposal process as will oppositional views. Those who are voting are part of that process. You cannot, in the debate after the second reading, say "We must pass this bill prohibiting public same-sex smooching because it's icky". If that's your ulterior motive, whatever, but valid reasons have to be presented by your side of the issue, and if those reasons really are valid under scrutiny, ulterior motives are irrelevant.

While having legislation introduced and appealing directly to politicians isn't easy, it's still easier than holding referendums or appealing to the masses (if they do not incidentally agree with your position) If the process of legislation approval doesn't go your way, there are several steps in the process for disapprovals or amendments. For instance, if my transgender rights case happened in Ireland and the Upper House unsatisfactorily amended the legislation, it would require approval again in the lower house and I could appeal to my elected representative to act a certain way. If a referendum doesn't go my way, I could ask my representative to work against the result, but in some cases it would be entirely meaningless, and in others it would be highly inappropriate. If the referendum rejects something I want approved, calling another referendum on the same issue is daunting. If a bill is rejected, presenting a modified version, or presenting it to a subsequent government after an election is comparably easier.

 

[krypton iodine sulfur]

In order to reduce vagueness, I considered two cases, but you haven't specified which ones you have in mind. Based on your reply above, it seems it's about making sure their proposals are constitutional.

It wasn't specifically either.

They're demonstrably bad, but not more than much of the behavior of Yahweh, Moses, Joshua and Jesus going by the biblical description, and not more than the claim than the arguments given by Edward Feser and other Thomist philosophers against sex other than between husband and wife are demonstrably bad, etc. But of course, all those views are defended by clever philosophers, politicians, etc.

The Canadian system, in the case of Plett, and the Irish system in all of its cases are not directly answerable to any of those people, nor were any of those people answerable to the Canadian or Irish legislative branches or constitutions. Bad decisions and bad reasoning can exist and be accepted int he world. That's not a point of contention.

Of course if the constitution already guarantees equality before the law to the extent that it protects from unjust discrimination based on sex, then allowing state-sanctioned opposite-sex marriages but not same-sex marriages would be unconstitutional, as long as that is done by law and not by amendment. If the constitution does not guarantee that, it will not be so (not on that basis).

Moreover, a constitutional amendment that respects procedures and bans same-sex marriage will not be unconstitutional, since that would be a modification to the constitution that would specify that the equal treatment does not extend to marriage of people of the same sex.

That's a debate for people who have a more detailed understanding of the Irish Constitution. I don't know that it actually could be amended that way. The point, however, was not that the right to equality under the law was an iron-clad constitutional defence of same-sex marriage, but rather government has to take this into consideration when it acts on the matter. "All citizens in Ireland shall be held equal before the law. This means that the State cannot unjustly, unreasonably or arbitrarily discriminate between citizens. You cannot be treated as inferior or superior to any other person in society simply because of your human attributes or your ethnic, racial, social or religious background. However, when the state is making laws, it may consider differences of capacity and of social function between individuals in society."

So the government cannot dodge discussing the issue if they seek to present legislation prohibiting same-sex marriage or oppose legislation approving it. They'd have to make a case regarding the capacity and social function between individuals in society. In the legislative process, there is debate after the second reading of a bill, so it's bound to come up in some form or another. The public, in a referendum, doesn't seem to have much obligation to hear out such a debate or consider such factors if they don't want. It's not their job which they are paid to do, and I don't believe there is a clear argument for civic responsibility to do so.

 

[krypton iodine sulfur]

Shit, I clipped out the middle of my last post.

The point is that many things are demonstrably bad, but the demonstrations will not persuade everyone, and sometimes will not even persuade most, and sometimes most will be persuaded that they're demonstrably good, and so on (apart from the fact that the vast majority of people can't demonstrate they're bad; even most activists would be defeated in a debate by a clever philosopher on the other side).

If you call them out on their claims, they can counter call you back, with arguments that will be appealing to their crowd, including their own pundits, whether philosophers, theologians, or political experts.

It doesn't matter. Pundits, theologians, philosophers or any other purported experts also need to make their arguments conform to what the legislative process accepts as valid legal principle. Even so, the topic is not whether or not bad decisions can ever be made by the upper and/ or lower houses due to inappropriate obstinacy; it was whether this is more accountable than the behaviour of the general public in a referendum. I can call out the senator in a case such as this along with any other person who voted along with him and did not offer superior reasoning. I may fail, but the opportunity exists, and subsequent opportunities may also exist in later steps of the process. I can't really do any of that with the public in a referendum.

Moreover, if they refrain from voting against same-sex marriage (or some other vote against the rights of some people, minority or not), they can be called on that if they promised otherwise to the part of the public that voted for them, or if they claim to accept the moral guidance of the Catholic Church, or whatever they promised.

If they refrain from voting they've taken themselves out of the equation. What they promised to voters (though that would only apply to the lower house), God or the devil himself doesn't absolve a representative of their duties though.

 

[Angra Mainyu]

But similarly, one may ask: why the fuck are the people who were voted in by your neighbors (perhaps, promising to uphold Catholic values and/or Christian values, promising to support so-called “pro-life” legislation, “defense of traditional marriage”, etc.) allowed to weigh in on issues concerning your rights with whatever arbitrary criteria they consider valid?

Because they cannot use arbitrary criteria; that's not their job. They have to use legally valid considerations consistent with constitutional values which, either by the party or the individual proposing legislation, will be disclosed during the proposal process as will oppositional views. Those who are voting are part of that process. You cannot, in the debate after the second reading, say "We must pass this bill prohibiting public same-sex smooching because it's icky". If that's your ulterior motive, whatever, but valid reasons have to be presented by your side of the issue, and if those reasons really are valid under scrutiny, ulterior motives are irrelevant.

With regard to the claim that using arbitrary criteria is not their job, now you're apparently talking about legal, and constitutional criteria. Sure, it's their job to stick to the constitution. But then again, the same happens when they put something to a vote. So, in that regard, there is no arbitrary criteria beyond the arbitrariness the constitution in question may already contain.
But that's a matter of sticking to the procedures the constitution establishes, not to the values in the constitution, especially if by “constitutional values” you mean “moral views that made it into the constitution”, or something along those lines (if not, what do you mean).
For example, a lawmaker may well be against some of the constitutional dispositions and want to change them. They can even disagree with the justice of some of those dispositions. That's compatible with their job description.
In particular, there are politicians who will make it very clear that they oppose gay rights, and in fact consider that allowing same-sex marriage or even same-sex relationships is unjust, etc.; how common that is depends on the country.
For example, if a politician campaigns on a platform involving “defending traditional marriage”, “protecting the unborn child”, etc., and promoting constitutional or legal measures to bring about what they want, they are not just because of that failing to do their jobs, as long as the measures they take are constitutional (but that includes constitutional amendments), and apart from the fact that they're being immoral – if part of their job description is not to be immoral, they're not doing their job, but they claim they are and in fact they claim that failure to take those measures would be immoral. Once they're publicly committed to a religion and/or specific measures, it's very costly to publicly change their votes. People who cast secret votes suffer much less pressure in that regard (which I say can go both ways).

Back to the issue of respecting the procedures established in the constitution, that's also the job of those lawmakers when they call for a referendum, or of the courts or whatever specialized body assesses that a referendum proposed by non-lawmakers is constitutionally sound, in those systems in which such a proposal by non-lawmakers is allowed.

So, when it comes to procedural grounds, the system without a popular vote does not seem to be in principle in a better position than the system with a popular vote – it depends on the case -, and when it comes to moral grounds, also neither system is in principle in a better position – it depends on the case.

While having legislation introduced and appealing directly to politicians isn't easy, it's still easier than holding referendums or appealing to the masses (if they do not incidentally agree with your position) If the process of legislation approval doesn't go your way, there are several steps in the process for disapprovals or amendments.
For instance, if my transgender rights case happened in Ireland and the Upper House unsatisfactorily amended the legislation, it would require approval again in the lower house and I could appeal to my elected representative to act a certain way. If a referendum doesn't go my way, I could ask my representative to work against the result, but in some cases it would be entirely meaningless, and in others it would be highly inappropriate. If the referendum rejects something I want approved, calling another referendum on the same issue is daunting. If a bill is rejected, presenting a modified version, or presenting it to a subsequent government after an election is comparably easier.

That seems to be a claim that passing laws or amendments by elected politicians is easier than passing it by popular vote.
I'm not sure that's true in general, though it's clearly true in those cases in which the popular vote require a previous approval by elected politicians, and assuming neither case requires a stronger majority.
However, that works both ways, because while it makes it easier for those politicians to pass amendments or laws protecting the rights of people, it also makes it easier for those politicians to pass amendments or laws taking them away.
Moreover, even when there is no popular vote involved, there is wide variation in the difficulty for amending a Constitution. In the US, for example, one needs 2/3 of Congress + ¾ of the states, or an even more difficult procedure of a constitutional convention (which is not used).
Is that easier than it is in the case of Ireland, where you only need more than 50% in each chamber, plus over 50% in a popular vote?
I don't know. It does not seem to be easier. But I don't see why easier would be better. I don't think there is an ideal degree of difficulty, either, that works for all cases. There are a range of solutions (in terms of degree of difficulty to amend the Constitution) that are good enough in each social system, in my view.

It wasn't specifically either.

Okay, so let's address the moral case in more detail:
1. Lawmakers aren't paid to be morally better than the rest of the population. 2
2. I don't see any good reason to think lawmakers are expected by most people to be morally better than they are, or even than the majority of people. If you think otherwise, I would ask why. But in any case, opinion polls in many countries indicate that most people do not expect lawmakers to be particularly morally good.

The Canadian system, in the case of Plett, and the Irish system in all of its cases are not directly answerable to any of those people, nor were any of those people answerable to the Canadian or Irish legislative branches or constitutions. Bad decisions and bad reasoning can exist and be accepted int he world. That's not a point of contention.

But my point wasn't that bad decisions and bad reasoning happen. The examples were an introduction to the part that came below. When you say that people are “answerable”, what do you mean?
If you're talking about criminal cases, that does not apply if they don't break criminal laws, and usually bigoted proposals don't.
If you're talking about further votes in the future, sure, but that goes both ways; it may be in their interest to be bigoted, if otherwise their political careers would be seriously damaged or over if they piss off someone like the Catholic Church, or if they incur contradictions that subject them to attacks from other politicians, or being shunned or publicly denounced by their own bigoted family, or whatever happens depending on the case.
As I pointed out, the secret of a vote allows much more freedom to vote, but that works both ways – freedom to be bigoted without having to worry about the consequences, and freedom to be anti-bigot without having to worry about the consequences, and similarly, public votes make people liable to suffer consequences for their bigoted votes, or for their anti-bigoted votes, depending on the case.

That's a debate for people who have a more detailed understanding of the Irish Constitution. I don't know that it actually could be amended that way.

So we're back to the Irish case, rather than the general one. I was talking about the general case, but in the Irish case, I'm pretty sure it could. There is no general disposition blocking what an amendment can constitutionally do. And for example, they have another very unjust disposition passed by an amendment, in article 40.3.3“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

The point, however, was not that the right to equality under the law was an iron-clad constitutional defence of same-sex marriage, but rather government has to take this into consideration when it acts on the matter. "All citizens in Ireland shall be held equal before the law. This means that the State cannot unjustly, unreasonably or arbitrarily discriminate between citizens. You cannot be treated as inferior or superior to any other person in society simply because of your human attributes or your ethnic, racial, social or religious background. However, when the state is making laws, it may consider differences of capacity and of social function between individuals in society."

A question would be whether it would be better if the Irish Constitution could be amended without a popular vote – though you would need a popular vote to remove the popular vote from the amending procedure.
I don't know. If you just remove the popular vote, changes (good or bad) become much easier, and indeed, much easier than most Constitutions. Would that be better, or worse? I'm not sure. It might go either way.
With regard to the specific case of marriage, if what you quote had been the text, same-sex marriage would have been protected as long as opposite-sex marriage was sanctioned by the state, even if there was no explicit protection. Even in the actual wording, same-sex marriage was still protected, but not explicitly so, and it turns out that the Irish courts failed to realize that.

But moreover, that general disposition of equality has or had exceptions, like:"The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law."

So, they're not so equal after all, because if (for example) you express contempt for something that happens to be a religion (or some religions), you might get punished for blasphemy (at least, in theory). Not that it would likely really happen.


Then there is: “The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.”

And how about: “The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
No law shall be enacted providing for the grant of a dissolution of marriage.
No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.”
Okay, now that one (but not the previous ones I quoted) was removed, by an amendment – this time, the amendment went in the right direction.
But the point is that bigoted text can make serious exceptions to equality, and used to do so in Ireland. And moreover, even with the modifications, the Irish Constitution could use a lot of improvement, and if bigoted lawmakers wanted to do bigoted things while doing their jobs, they would be able to get away with many of them, constitutionally.

So the government cannot dodge discussing the issue if they seek to present legislation prohibiting same-sex marriage or oppose legislation approving it. They'd have to make a case regarding the capacity and social function between individuals in society. In the legislative process, there is debate after the second reading of a bill, so it's bound to come up in some form or another. The public, in a referendum, doesn't seem to have much obligation to hear out such a debate or consider such factors if they don't want. It's not their job which they are paid to do, and I don't believe there is a clear argument for civic responsibility to do so.

Even if they're not paid for it, they have a moral obligation not to go around taking the rights of others away. Lawmakers are paid to do their job and pass laws or amendments in accordance to the Constitution, but:
a. That does not include refraining from proposing amendments by the procedures in question.-
b. In fact, there is bigotry still enshrined in the Constitution, so if part of their job is to pass amendments only when they're consistent with constitutional values – so, they shouldn't try to change those values -, then it seems part of their job is to only pass some amendments that support false moral claims, are against women rights, and so on.
On the other hand, if they fulfill their job by doing what the Constitution tells them to, even if that means changing the values of the Constitution, then going against those values is not a breach of their work obligations, as long as they respect procedures.
Granted, you could argue that part of their job description is to only pass amendments compatible with some of the values of the Constitution, and against some other values of the Constitution. But you would have a hard case to make.
c. In any case, the referendum is called only after the procedure in Congress, which involves all of that debate.
d. Judges are also paid to uphold the Constitution. In fact, unlike lawmakers, they're not entitled to start an amendment procedure. But the courts in Ireland failed to recognize same-sex marriages. . Many politicians didn't fail, and neither did the majority of voters. But my point is that it can go one way or the other, either with voters or with people paid to do a job.

It doesn't matter. Pundits, theologians, philosophers or any other purported experts also need to make their arguments conform to what the legislative process accepts as valid legal principle. Even so, the topic is not whether or not bad decisions can ever be made by the upper and/ or lower houses due to inappropriate obstinacy; it was whether this is more accountable than the behaviour of the general public in a referendum. I can call out the senator in a case such as this along with any other person who voted along with him and did not offer superior reasoning. I may fail, but the opportunity exists, and subsequent opportunities may also exist in later steps of the process. I can't really do any of that with the public in a referendum.

Actually, the topics are varied, but in the case of accountability, I asked you what you meant by that, and from that and other points we got to the examples I was giving.
The point is that in that sense, yes, they're more accountable for their votes, because their votes are both a matter of public record and often a very well known one. But my point her is that that type of accountability goes both ways: it's the kind of accountability by which lawmakers may suffer negative consequences for failing to support equality for gay people, or for failing to support bigotry against gay people. Whether it will work in one direction or another (or it will be roughly the same) depends on the specific social conditions of each case. In Ireland, it seems that the popular vote actually worked, because without it,

If they refrain from voting they've taken themselves out of the equation. What they promised to voters (though that would only apply to the lower house), God or the devil himself doesn't absolve a representative of their duties though.

But people disagree about what those duties are, and the point is that lawmakers can be pressured to support bigotry or else be accused of failing to meet their duties, just as they can be pressured to oppose bigotry or else be accused of failing to meet their duties.
My point is that that sort of pressure can go both ways, as well as pressure from their families, pressure from powerful institutions like the Catholic Church, etc.
People who cast secret votes avoid that sort of pressure for the most part, which also can go both ways.
In this particular case (i.e., Ireland) both most of the public and the politicians went in the right direction, while the courts went in the wrong direction. There are cases when it's just the other way around, and there are other potential combinations.

 

[krypton iodine sulfur]

With regard to the claim that using arbitrary criteria is not their job, now you're apparently talking about legal, and constitutional criteria.

It's legislation in a system bound by a constitution, so of course that is what I am talking about.

But then again, the same happens when they put something to a vote.

A vote where? In the public? No, the same doesn't happen. I've been over that already.

Back to the issue of respecting the procedures established in the constitution, that's also the job of those lawmakers when they call for a referendum, or of the courts or whatever specialized body assesses that a referendum proposed by non-lawmakers is constitutionally sound, in those systems in which such a proposal by non-lawmakers is allowed.

Yes, the point is that legislators are more accountable than the general population. Saying that the general population is made accountable by legislators adds to the accountability of legislators, not the general population.

So, when it comes to procedural grounds, the system without a popular vote does not seem to be in principle in a better position than the system with a popular vote...

No since argumentation and the vote itself are parts of the process. In the legislature, there are greater rigours for this part of the process and greater transparency. The public is not expected to go through most of this in order to participate in a referendum. Most of the public wouldn't even have time to do so since they have other jobs as their primary focus.

http://www.youth.ie/nyci/Legislative-Process-Ireland

That seems to be a claim that passing laws or amendments by elected politicians is easier than passing it by popular vote.

No, introducing the issue for the purposes of legislative action and having legislators hear arguments for your position in that legislative process is easier.

1. Lawmakers aren't paid to be morally better than the rest of the population
2. I don't see any good reason to think lawmakers are expected by most people to be morally better than they are, or even than the majority of people.

Irrelevant. They are paid to handle legislative matters according to certain standards and regulations. They accept the responsibility willingly and are compensated and equipped to primarily focus on that job, rather than having de facto civic responsibility most people have merely for being born within a certain geographic region.

It doesn't matter if legislators are morally superior as human beings; what matters is that their moral responsibility to behave appropriately in legislative matters is greater than that of the general population. As for their personal, moral opinions? If their position cannot be backed up with arguments which fall within government interest, and are consistent with the legal principles of the nation and its constitution, those personal moral values lack merit as an argument for legislative decisions.

When you say that people are “answerable”, what do you mean?

I mean they have zero relevance to this conversation.

If you're talking about further votes in the future, sure, but that goes both ways; it may be in their interest to be bigoted...

It is not their interest which ultimately matters; it's their arguments (or the arguments of their peers as not every voting member speaks on every issue). Even if their motives are impure, if their arguments are valid in the eyes of the law, that's what matters. Ireland's system was not formed overnight. It has an established history of legislative proposals, procedures, legal doctrine, court rulings and so on. The legislature also has access to lawyers and other professionals who can advise the process. It's structured and involved, substantially more so than the public's participation in a referendum.

So we're back to the Irish case, rather than the general one. I was talking about the general case, but in the Irish case, I'm pretty sure it could.

There is no general case. It's a specific legal matter and various constitutions have specific ways of dealing with it. We cannot simply form some magical case on supposition which has no bearing on what happens in reality. The Constitution governing Ireland will set out what can and cannot be done by which parties and by what means. I've only read the Fundamental Rights under the Irish Constitution so I have no way of commenting on whether or not the scenario you mentioned was reasonable.

A question would be whether it would be better if the Irish Constitution could be amended without a popular vote – though you would need a popular vote to remove the popular vote from the amending procedure.

That's a different topic. The one we're discussing already is a unwieldy mess.

I'm cutting off here. I cannot keep going into derailments on what was a very simple position from the start. You are interested countless avenues which I really don't care to discuss at the moment. The bulk of the remainder of your post drifts into those avenues.

 

[Tom Sawyer]

How do you spell "sore loser"?

V-A-T-I-C-A-N

http://www.usatoday.com/story/news/world/2015/05/27/vatican-pope-francis-referendum-gay-marriage/28024599/

The Vatican's secretary of state called Ireland's vote to approve same-sex marriage "a defeat for humanity."

Fuck you, humanity. Not only did you lose, but you lost to those pathetic humans.

 

[Keith&Co.]

How do you spell "sore loser"?

Without mentioning Ireland's referendum vote, the pope described marriage as "the alliance of love between a man and a woman."

Yeah, specifying the approved gender ratio is diplomatically avoiding the Ireland referendum. And ignoring church history of love alliances between a man and a man.

Maybe the problem is that the referendum doesn't swing any money over to the Vatican's coffers?

 

[Tom Sawyer]

Maybe the problem is that the referendum doesn't swing any money over to the Vatican's coffers?

The problem is that the Vatican campaigned hard in a heavily Catholic country to have the referendum fail and they lost badly. It's a major signal about the significant decline of their influence, even amongst people who identify as part of their group.

They're not the relevant institution that they used to be.

 

[krypton iodine sulfur]

They definitely have a marketing problem on their hands. They don't want to soften their appeal with the staunch social conservatives, but they need the gay-friendly dollar in some of their more affluent markets. It seems the current Pope had the business sense to ease off the issue a bit, even if there was no company policy change, but not everyone in the organization and the various franchises got the memo.

 

[Angra Mainyu]

It's legislation in a system bound by a constitution, so of course that is what I am talking about.

That was hardly obvious, since when I tried to distinguish between morality and legality, you said you weren't talking specifically about either.

But in any case, in that sense, as I pointed out, the same happens when they put something to a vote (i.e., they have to accept constitutional criteria). So, in that regard, there is no arbitrary criteria beyond the arbitrariness the constitution in question may already contain, and neither system is better than the other.

A vote where? In the public? No, the same doesn't happen. I've been over that already.

Yes, the same happens. I have explained this already. If the amendment requires no public vote, lawmakers who pass it have to stick to the constitution. If the amendment requires a public vote after the vote by lawmakers, the lawmakers who pass it to the public also have to stick to the constitution, if you're talking about the Irish system or similar ones, in which lawmakers have to pass the amendment anyway.

On the other hand, in a system in which a certain portion of the public can propose an amendment and call for a referendum (by presenting a number of signatures, for example), they still have to stick to the constitution, and whatever state body they present their signatures to (be it a court or a specialized electoral body) checks constitutionality.

So, with regard to the claim that using arbitrary criteria is not their job, you're alking about legal and constitutional criteria, and in that case, neither system (i.e., with or without referendum) has an advantage over the other. Specific systems may be better or worse, but that depends on the case.

Yes, the point is that legislators are more accountable than the general population. Saying that the general population is made accountable by legislators adds to the accountability of legislators, not the general population.

No, I'm not saying that the population is made accountable by legislators. I'm saying that with regard to your point about amendments having to respect constitutional criteria, neither system under consideration has an advantage over the other, because the amendments have to pass constitutional muster anyway, and that is checked by one specialized body or another anyway, so in particular, the fact that amendments require to meet certain criteria provides no support for a claim that the system without referendum is better than a system with a referendum, all other things equal

No since argumentation and the vote itself are parts of the process. In the legislature, there are greater rigours for this part of the process and greater transparency. The public is not expected to go through most of this in order to participate in a referendum. Most of the public wouldn't even have time to do so since they have other jobs as their primary focus.

That's not the point.
The convenience, or the morality, etc. are different matters from the matter of whether the amendment is constitutional, i.e., meets the criteria the constitution establishes.
The latter matter is covered just as much in a system with a referendum and in a system without it.
As for the matters in the first category, those are not matters meeting constitutional criteria, which is what you said you were talking about when you raised the “arbitrary standards” objection”.
When it comes to the convenience, morality, etc. of an amendment that meets constitutional criteria, a system with a referendum may be better, worse, or about as bad as one that doesn't have one, for all the reasons I've been explaining.

No, introducing the issue for the purposes of legislative action and having legislators hear arguments for your position in that legislative process is easier.

I don't see any reason for that, since systems that require referendums also allow for the introduction of the matter to a legislative body which may discuss it and, if the majority or some special majority agree with the proposal, submits it to a referendum.

Irrelevant. They are paid to handle legislative matters according to certain standards and regulations. They accept the responsibility willingly and are compensated and equipped to primarily focus on that job, rather than having de facto civic responsibility most people have merely for being born within a certain geographic region.

No, it's not irrelevant. It's the second option I was considering, because you didn't specify whether you were talking about moral matters.
Let me quote the exchange, so that you can see how it's relevant:

An MP's 'bosses' in practice are subject to the same considerations as the MP themselves, generally. This was a consideration when I posted already. I don't know how it works in Ireland exactly, but in Canada a Party Whip exists to maintain discipline within parties which can affect how an MP votes. This does not alter the fact the expectations placed upon an MP are higher when they deal with proposed legislation as an elected representative than those placed on ordinary civilians in a referendum.

Here, you were talking about “higher expectations”.

“Higher expectations” is vague, so let's consider two cases:
1. If you're talking about expectations that the proposed piece of legislation, constitutional amendment, etc., will be constitutional – in the case of an amendment, that it will meet the previously specified conditions for an amendment -, then the expectations (at least, the expectations of most people; if you're talking about someone else's expectations, please clarify) aren't higher in the case of a bill or amendment passed by lawmakers than a similar instrument passed by lawmakers or checked by a court or specialized body but which is submitted to a referendum.

2. If you're talking about higher moral expectations, I don't think that's usually expected, but assuming it is, my point is that that works both ways, since anti-gay bigotry – and generally suppression of rights – are very often motivated by false moral beliefs, or at least those supporting them believe that they're motivated by those moral beliefs.
For example, people who are publicly known as Catholics or Evangelicals and are casting a public vote and are being watched are more likely to feel pressure to vote against the rights of gay people because otherwise they can be accused of immorality by their own avowed standards, hypocrisy, etc., than people who are casting a secret vote, and can go with whatever they feel.

At this point, since you do not specify whether by “higher expectations” you're talking about moral expectations, or legal/constitutional ones, I consider two cases. Your reply is:

It is literally what they are appointed to do. They are paid and provided resources explicitly to deal with the subject matter of governmental affairs and legislative duties. The general public has no such obligation and less resources at their disposal. Whether it is a referendum or proposed legislation, the proposal could contain items which are unconstitutional, or it could be propped up with considerations which are not in keeping with constitutional values. In this case, it is not unconstitutional to not explicitly include same sex marriages in the constitution, yet not doing so on the basis of disagreeing with same-sex marriage is not in keeping with constitutional values such as equality before the law. A politician failing to consider this context is failing their responsibility and obligations as a paid and elected official, but a public citizen is not.

That still doesn't tell me for sure whether you're talking about higher moral expectations, or constitutional/legal ones, but it suggests strongly it's the latter, so I reply:

In order to reduce vagueness, I considered two cases, but you haven't specified which ones you have in mind. Based on your reply above, it seems it's about making sure their proposals are constitutional.

But you reply:

It wasn't specifically either.

Given that reply, the vagueness about what sort of expectations you say are higher remains. You don't specify, so I decide to reply considering both the legal/constitutional expectations, and the moral ones. When it comes to the former, as I already explained, the criteria need to be met in both a system that has a referendum, and one that does not.
On the other hand, the moral case requires a different assessment. The beginning of that assessment is:

1. Lawmakers aren't paid to be morally better than the rest of the population
2. I don't see any good reason to think lawmakers are expected by most people to be morally better than they are, or even than the majority of people.

Clearly, that is relevant when it comes to assessing the moral variant of higher expectations – something we could have avoided if you had explained in which sense you were talking about higher expectations, but you explicitly said you weren't talking about either possibility, so in order to be thorough, I had to handle both.

Irrelevant. They are paid to handle legislative matters according to certain standards and regulations.

They accept the responsibility willingly and are compensated and equipped to primarily focus on that job, rather than having de facto civic responsibility most people have merely for being born within a certain geographic region.

It doesn't matter if legislators are morally superior as human beings; what matters is that their moral responsibility to behave appropriately in legislative matters is greater than that of the general population. As for their personal, moral opinions? If their position cannot be backed up with arguments which fall within government interest, and are consistent with the legal principles of the nation and its constitution, those personal moral values lack merit as an argument for legislative decisions.

No, I don't agree that they have a greater responsibility to behave appropriately in legislative matters if by “behave appropriately” in legislative matters you're talking about the morality of the proposed piece of legislation or amendment, aside from the question of whether it meets constitutional standards.
As for whether it meets constitutional standards, as I explained, neither system (i.e., no referendum vs. referendum required) is better than the other in that regard, and moreover, in both systems, there are lawmakers or another specialized body whose job is to assess the constitutionality of the proposed amendment or piece of legislation (including whatever is put to a public vote).

I mean they have zero relevance to this conversation.

That's not a standard meaning of “answerable”, but in any case, I disagree of course, for all the reasons I've been giving.

It is not their interest which ultimately matters; it's their arguments (or the arguments of their peers as not every voting member speaks on every issue). Even if their motives are impure, if their arguments are valid in the eyes of the law, that's what matters. Ireland's system was not formed overnight. It has an established history of legislative proposals, procedures, legal doctrine, court rulings and so on. The legislature also has access to lawyers and other professionals who can advise the process. It's structured and involved, substantially more so than the public's participation in a referendum.

The arguments in support of a proposed piece of legislation or amendment that would be constitutional to pass are neither valid or invalid in the eyes of the law – we're talking about something that is already legally/constitutionally valid -, and neither system (i.e., no referendum vs. referendum required) is better than the other in that regard (i.e., with respect to checking whether the proposal is constitutional; that is always checked by a specialized body).

If you're talking about the morality of a proposed legislation or amendment that would be constitutional to pass, I already address the matter in detail. Neither system is better or worse in principle, but rather, it depends on the case, for all of the reasons I've been giving.

There is no general case. It's a specific legal matter and various constitutions have specific ways of dealing with it. We cannot simply form some magical case on supposition which has no bearing on what happens in reality. The Constitution governing Ireland will set out what can and cannot be done by which parties and by what means. I've only read the Fundamental Rights under the Irish Constitution so I have no way of commenting on whether or not the scenario you mentioned was reasonable.

Of course there is a general case, as is clear from my first post, and your reply to it, as well as the rest of the exchange. In fact, I'm objecting to the idea that all other things equal, a system in which amendments require a referendum is worse than a system in which they do not. That's not a question of the specific Irish case.

Moreover, it's not a specific legal matter. The general case is a moral matter, and while we're also discussing legal or constitutional issues, for the most part we're debating morality. In fact, even your claim that the fact that there was a popular vote isn't something to boast about – a claim I'm not challenging, by the way; I'm challenging other claims of yours, but not that one – is surely a moral claim, not a legal one.

I'm cutting off here. I cannot keep going into derailments on what was a very simple position from the start. You are interested countless avenues which I really don't care to discuss at the moment. The bulk of the remainder of your post drifts into those avenues.

Your choice, of course, but actually, you've been the one introducing more objections and matters, and mostly missing the points I was making, and I've been addressing all of your points, clarifying again and posting links to show the relevance of my replies, etc., which has made the replies much longer.
As for me, I wasn't interested in all of those issues. I was interested in a much narrower, more focused one, but given your challenges to my points or what you believed them to be, I became more interested in defending my correct points than in any other issues, and given that you insisted on claims that I had already addressed without addressing my points or addressing what you mistakenly believed my points were, the exchange became much longer (Side note: That's one of the main reasons I usually avoid debates in TFT and other similar forums; philosophy boards are far better in that regard; I thought this would be a very brief intervention on my part in this thread, but clearly that didn't work out.).

 

[Angra Mainyu]

Clarification:

In fact, even your claim that the fact that there was a popular vote isn't something to boast about – a claim I'm not challenging, by the way; I'm challenging other claims of yours, but not that one – is surely a moral claim, not a legal one.

I'm not challenging the claim that it's not something to boast about if one understands it in the weak sense that having a vot on the matter is not per say something positive. On the other hand, if one understands that claim in the strong sense that having a vote on the metter is something negative, then I am challenging it. It's a neutral issue.