On Friday 22 May Ireland could become the first country to vote in favour of gay marriage. The latest opinion polls suggest that gay marriage will be legalised in Ireland with a yes vote of somewhere in the mid 60 percent range. Gay marriage is currently legal 16 countries (it is pending in Finland and Slovenia) and available in certain parts of the USA, Mexico, the UK (it is not legal in Northern Ireland). In all of these cases gay marriage was passed by the country’s parliament and not by a direct vote by the people.
In order to change the Constitution there has to be a referendum. This allows Irish people a vital, if limited role, in the creation of legislation. In theory the Irish government could have enacted legislation to make gay marriage legal without a referendum but there are a couple of issues with this approach. Such a change could have been challenged in the courts as unconstitutional. Although the Constitution does not explicitly state that marriage is between a man and a woman that was undoubtedly what was intended when the Constitution was written in 1937XXX. Also such legislation could, in theory, be changed by a future government. If Ireland votes to allow gay marriage then it could only be rescinded by another referendum not by any government. Perhaps most importantly a constitutional change will allow gay people in Ireland the highest level of protection in Irish law. As all other laws must be constitutional it would be difficult for a future government to draft laws that discriminated against gay people.