How Ireland legalised divorce… eventually

For anyone under 30, the 1995 Divorce Referendum is ancient history. Anyone over 40 still can't quite believe it’s 21 years ago.  For those over 50, it’s forever linked with the earlier Divorce Referendum in 1986, and before that the 1983 Pro-Life Amendment, because that’s when the story began.  

Best not to linger on just how bleak the 1980s were in Ireland.  Deep recession, mass unemployment, sky-high taxes, political scandal and instability isenough to summon it up. On the other hand, the population was younger, better educated, more media-savvy, more urban, and more liberal than ever before.  And they were looking for a different Ireland. There were calls to change the extremely conservative laws on divorce and homosexuality. 

What they got in the way of legal change was quite different. Seemingly out of nowhere, and in the absence of any pressure about abortion, a small, highly organised lobby launched a pre-emptive strike against any future attempt by the government or the courts to liberalise Ireland’s abortion laws. They successfully pressurised the government into holding a referendum to insert an amendment into the Constitution to ban abortion.  Foreign reporters were mystified.  Wasn’t abortion illegal in Ireland since 1861 they asked?  Yes, indeed, one politician quipped. There is no abortion at all in Ireland. But now there will be none at all, at all. 

The slick, American-style campaign of the Pro-Life group was nothing like the ordinary pork-barrel elections we were used to in Ireland. Politicians were subjected to postcard campaigns. Lurid posters warned against killing babies. The bishops weighed in with heavy artillery. Any opposition to the amendment, on any ground, carried the risk of being branded pro-abortion.  In 1986, the referendum was decisively passed.  

Three years later, with polls showing over half the electorate in favour of lifting the ban on divorce, the government agreed to hold a referendum. Conservative groups, elated by the recent abortion referendum victory, swung into action.  using much the same kind of negative, campaigning tactics. It is hard to describe the atmosphere of bitterness that quickly developed between the yes and no sides. But fear and loathing would be a good start. 

In response, many who had come out publicly in support of divorce felt intimidated and went silent, leaving the rest even more exposed to attack from the no side.  In start contrast to the full-throated vigor of the no side, the government campaign was lacklustre, and in some quarters, even apologetic. They got no help from the Haughey-led opposition who remained ‘neutral’.  Not enough preparation had been done to provide clarity on contentious issues like property and pension rights, which the no side cleverly exploited. No surprise then the amendment was defeated almost two to one. 

But both referendum wins were at a cost. For many people, the bitter, fear-fuelled campaigns left a sour note, a sense that the door to change, barely open, had been slammed shut again. The triumphalism of some conservative groups, with two major victories under their belt, was hard to bear, especially for the many thousands of separated couples were consigned back to limbo. You made your bed, now lie on it. 

An air of gloom descended, like a solar eclipse, even among some who had voted in favour. One friend wondered aloud if she had inadvertently found herself on the wrong side of history, especially when a few months after the referendum, polls again showed strong support for divorce. Young, first-time voters, already facing a dismal job market and the prospect of emigration, felt defeated. What future here? One first-time yes voter said it felt like a blow to the solar plexus. 

It took nine years for the government to agree to another divorce referendum. By then, there were over 75,000 people who were separated. The early omens were good. Polls showed 2:1 support for the yes side.  This time, there was slightly more certainty, or at least less panic, about the protection of family assets like farms. There was cross-party support for the amendment, and some acceptance that provision would have to be made for Protestant and other minorities if there was to be any chance of a united Ireland.  

But, early into the referendum campaign it began to look like a re-run of 1986. Once again, the no side left no fear unturned. In one infamous poster in the 1995 campaign, children were told ‘Hello Divorce ….Bye, Bye Daddy’. Wives were warned they would be left impoverished. Husbands were told that departing wives would take everything. One Westmeath farmer told a New York Times reporter "I don't want my son marrying some girl from Dublin, then watching them get divorced and her walking off with half the family heritage in two years' time”.  Catholic churchgoers were treated to the kind of thundering sermons once reserved for visions of hell. Even at the votes were being counted, one well known no campaigner hurled colourful abuse at the yes side: ‘Go ‘way, ye wife-swopping sodomites’. 

But, in the end, the yes side limped over the line. Just 50.3% voted yes, a precarious 221 votes in favour in each constituency.  Only Dublin, surrounding counties Kildare, Wicklow and Louth, and one constituency each in Cork and Limerick voted in favour. And if it hadn’t rained heavily in the largely no vote West, the referendum might well have been lost. 

Although the level of campaign rancour hardly changed between 1986 and 1995, Ireland had. In 1986, the authority and power of the Catholic Church was supreme. The Catholic after-glow of the 1979 triumphant visit of the Pope to Ireland and his emotional ‘Semper Fidelis’ appeals still lingered. By 1995, successive scandals had fatally weakened the Catholic Church’s authority. Bishop Casey and Fr. Michael Cleary, who had triumphantly flanked the Pope on his visit to Ireland, were found to have each fathered a child, the former with his divorced American cousin, the latter with his housekeeper. But that turned out to be small potatoes compared to the later shocking revelations about clerical sex abuse. So by 1995, even the direct intervention of the Pope and Mother Theresa of Calcutta urging a No vote failed to make a significant impact.   

The aftermath

The results of the 1995 referendum did not usher in the ‘divorce culture’ the no side feared. UCD Professor Tony Fahey points out that in every Western country when divorce is liberalised, divorce rates typically start off at about one for every 1,000 people, and then increase rapidly year on year, taking up to 30 years to level off.  In Ireland, the rate never rose above .9 per 1,000 people, and is now just .6, the lowest in the EU.  However, if you count in the number of Judicial Separations, the rate edges up to near the EU average.  Many divorce law practitioners believe that the low rate of divorce may be due to our ‘two-tier system’ where a Judicial Separation has to precede divorce proceedings, making it too costly and cumbersome for most couples.  

But rates of separation and divorce do not capture the way the meaning of marriage has been transformed.  The two divorce referenda, and the more recent Marriage Equality referendum not so much altered the traditional meaning of marriage, but reflected a huge change in the way we think about marriage, not just here, but in most Western countries. 

Marriage used to be only socially acceptable way for a couple to enter a full adult family life. It was the gateway to setting up home together, and having (legitimate) sex and children. It alone provided the legal and economic protections for women and children. Living together before marriage is common. A third of births are outside marriage. 

The traditional tidy sequence of love, marriage, and the baby carriage is now no longer the norm.  Couples themselves decide in what order they will start a sexual relationship, live together, having a family, buy a house, or get married. The starting point is establishing a close and intimate relationship, one where there is open communication and a strong commitment to negotiate as equals about important issues. They are not just looking for love and friendship from each other, but also the hope that each can help the other to express their deepest feelings and become the best parents they can to any future children. 

It is, of course, a work in progress but that idea and expectation of marriage is unlikely to change. 

Governments and churches, then, no longer dictate what happens. Rather, they are frantically trying to catch up on, to regularise, the changes couples are already making in their lives.  So too with referendums. They have the power to accelerate or delay deep social changes. But, in the long run, they can rarely reverse them. 

Perhaps the most interesting question is this.  Since it is now possible to live together, have babies, buy a house, and have a civil union that will provide most or all of the legal protections of marriage, why bother getting married at all? Apart from its religious significance, what is the great attraction of marriage, not just for heterosexual, but also for gay and lesbian couples?  Yet, most people still expect to marry, and most eventually do. 

The most considered answer comes from the findings of one of the world’s leading researcher on marriage. Once, he says, getting married was the foundation stone of adult life. Now it’s become the capstone. In other words, marriage has become the most prestigious kind of couple relationship, a status that most couples aspire to, and build up to. It is a celebration and social acknowledgment of all they have achieved together: a committed intimate relationship, personal maturity, maybe children, enough career and financial security to set up a viable household together. 

Culture wars and social change 

It wasn’t until 1991 that the term ‘culture wars’ was first used in America to describe the bitter struggles between conservatives and liberals on social issues like equality, divorce, abortion, and gay rights. We Irish are now veterans. During the 1980s and 90s, the battles between conservatives and liberals seemed endless, like two armies inching forward and falling back. But looked at retrospectively, what distinguishes social change in Ireland is how rapid it was, and continues to be.  It’s probably because we are such a small, largely homogenous and intimate society.  

If my late mother’s daily phone calls were anything to go by (which invariably started with ‘You’ll never guess!’), news of a single daughter having a baby, or a nephew coming out, or a cousin’s marriages breaking up, or a separated uncle being in a ‘new relationship’, sweep rapidly through small communities. Change spreads rapidly through large, open social networks in towns and cities. In large societies, with ethnically or religiously divided populations, such social change gets ‘contained’ in closed networks, and travels more slowly.  But Ireland, like a small light boat, can lurch and change direction more rapidly and sometimes unpredictably.

When the divorce referendum passed in 1995, Mags O’Brien, the Chair of the Divorce Action Group wryly remarked that Ireland had finally entered the twentieth century - just on the eve of the twenty-first. But hardly anyone anticipated the speed with which we then made up for lost time. A bare twenty-two years after the decriminalisation of homosexuality, after a campaign remarkably free of rancour, we became the first country in the world to vote for Marriage Equality for same-sex couples by popular referendum.  The New York Times declared that the victory put Ireland at the  ‘vanguard of social change’. Watching the celebrating crowds on the day of the result, it was hard to escape the sense that, not just the LGBT community, but also the country itself, was breathing a great sigh of relief, shrugging off of some of the bitterness and divisiveness of the previous three decades.

Lessons learned? 

 As social change continues, and we face new campaigns on divisive social issues, is it inevitable that they will be as divisive and bitter as they were in the past?  Controversial, certainly, because much as we may dislike the idea, conservatives and liberals are stuck with each other. Every known society has conservative and liberal elements. Both camps do not just see things differently. They are different—in personality, and in their unconscious reactions to the world around them. There is even evidence that these differences may be innate. For example, people who are conservative tend to be highly attuned to fear and threat. Those who are liberals tend to be more open to experience, more attuned to diversity and new ideas. That distinction between them is a very good thing for all of us, as being attuned to threat and open new ideas are both necessary for the survival of a society. 

It is inevitable that people with such contrasting mindsets will disagree and clash and engage in sharp and occasionally very heated debate. What is not inevitable is that such conflict descends into the bitter recriminations and personal attacks that have characterized referendums on social issues in the past. The Marriage Equality Referendum offers hope in that regard. 

The key is for both conservatives and liberals to recognize that the other side is not thwarting them from a mixture of ignorance, wrong-headedness, lack of compassion or even malice, but is actually battling from a moral perspective, and there is some common ground between them. 

There is persuasive evidence that people worldwide construct their moral codes from five values: caring for others, especially the weak and vulnerable; fairness or reciprocity (most world faiths have some version of the ‘Golden Rule’); respect for authority; loyalty to an in- group, particularly a group that is united to fight against other groups; concern about ‘purity’ or sanctity - the idea that virtue can be achieved by purity of the body, or of beliefs, or of national identity. 

Both conservatives and liberals put a high value on the first two value, care and fairness,  liberals rating them slightly higher.  But what separates them and creates the most conflict is the other three.  For liberals, purity, group loyalty, and traditional authority have little to do with morality. For conservatives, they are central to what is right. 

Together, all five values are useful. Without them, we could not bond together, or cooperate to get things done. Too much care or fairness is rarely a problem.  Some order, tradition and loyalty are critical for any group to function. But too much can become controlling and repressive, especially of those who are less powerful in society.  Too little can end in splits, chaos and social fragmentation. Concern about purity reinforces the self-control and self-sacrifice often necessary for heroic action and good health.  Too much invariably involves an unhealthy repression of the body’s natural appetites, and remarkably often of women’s sexuality. 

We can never expect conservatives and liberals to fundamentally agree with each other. But there is some interesting evidence that anything that facilitates more accurate emotional attunement between the two sides can move them a little closer together, while allowing them to stay within their own acceptable range of values.  This is because the moral values that motivate us are not just beliefs; they are visceral, deeply rooted in emotion and intuition. That is why facts and debates, while they may ‘convince’ us in some cognitive way, rarely motivate us to change. But this process of attunement has to happen well in advance of a referendum campaign, when white heat of the battle dissolves any potential readiness to change. 

Lasting legacy

Looked at now, thirty years on, our culture wars, despite all their rancor, have left a lasting legacy.  For all our problems, Ireland has become a more open, more compassionate, more tolerant, more generous society. We have managed to transform ourselves not so much by adherence to high ideological principles, but by a very different, more feeling process. We have achieved some understanding and a negotiated compromise on important social and moral issues, a provisional consensus, even if we don’t have universal agreement.  We have crossed, with some success, the great divide between traditionalism and modernity.  These are grounds for optimism. 

Originally published in the Sunday Independent.

Posted: 22 May 2016