Divorce was declared illegal in Ireland by the Constitution of 1937. A referendum to repeal the ban was proposed in 1986 and soundly defeated. Almost two-thirds of the electorate voted against it. In November 1995 a second divorce referendum was put to the country. That one passed, by a margin of just over nine thousand votes in a total valid poll of 1.62 million. I had just started graduate school at Princeton that Autumn and remember the slightly frozen expressions of fellow grad students when I told them about the constitutional debate raging at home. Most of them were under the impression that Ireland was an advanced capitalist democracy located in Europe, fabled continent of liberal attitudes toward sex and generous social provisions for all. I decided not to upset them further with stories of my college years, which coincided with the time of the Great Condom Wars in Ireland.
The rhetoric of the Irish divorce debate is strikingly similar to what we’re hearing today about gay marriage in the United States.
In the gay marriage debate, many argue that a fundamental fact about the institution of marriage is that it is between a man and a woman. Less than ten years ago in Ireland, just shy of half the voting population took the view that, both as a matter of definition and a point of law, marriage was fundamentally for life. Then as now, they argued that it was the foundation of the social order. Divorce was a plague—a favorite phrase of the Catholic hierarchy, which asked the faithful to vote No. The institution of the family would be destroyed by it. There would be a disastrous backlash, with women and children suffering immensely. And of course it was a grave offence against natural law. The posters for the No campaign had slogans like ‘Hello Divorce, Goodbye Daddy’ and “You Will Pay.” The “social fabric” would be torn apart if it were permitted.
On the “Yes” side, the idea that it was only fair and sensible to let people have a second chance was the main plank of the campaign. After all, Irish marriages didn’t stop failing just because divorce was illegal. The country already had a system of family courts, a body of law governing separated spouses, and so on. The simplest and best argument for legal divorce—that in the eyes of the state marriage is a special kind of contract between two people that can be dissolved if one of them so wishes—didn’t have much traction, as I remember, mainly for that reason. The right to divorce is not the right to leave your spouse, it’s the right to remarry someone else. The “No” side thought separation ought to be enough. In the end, Ireland passed the most restrictive divorce law in Europe. Couples seeking divorce must live apart (though not necessarily in different houses) for a minimum of four years before becoming eligible to seek a divorce.
Ireland is in many ways a very different society from ten years ago, with legal divorce only one of the engines of change. I imagine there are many people who voted No at the time who think that the country’s social fabric has been pretty much shredded. The thousands of people who now obtain divorces every year are likely to disagree. I think it’s plausible that in terms of sheer pressure on the social order, the legalization of divorce is a much more serious event than the prospect of gay marriage. Civil divorce reconfigures property rights, redistributes assets and income, creates a multiplicity of new kin ties and makes one of the most important life choices much more open-ended for everyone. And on each of these dimensions, legalizing divorce directly and indirectly affects far more people than legalizing gay marriage. In short, those who campaigned then against legalizing divorce in Ireland had a much stronger case than those who campaign now against legalizing gay marriage in the United States. While the moral arguments are essentially the same in both cases, the potential consequences for the social order are clearly more far-reaching when it comes to divorce. If you think a society can sustain the stress that divorce puts on it, then you should think the same about gay marriage. If you don’t, then you should forget about the problem of gay marriage and get to work rolling back the much more serious threat of legal divorce.
fn1. Go back another ten years and you get things like the Family Planning Act, which allowed the sale of contraceptives by prescription only, to married couples only, for “bona fide” family planning purposes only. This was the famous Irish solution to an Irish problem. And don’t even ask about ten years before that.
fn2. If you think that moral or visceral abhorrence of the idea of divorce just can’t be as strong as abhorrence of the idea of homosexuality, I refer you back to the Irish case.