Human Rights.

One of the most important subjects to be considered where direct democracy is used is the protection of human rights, and the protection of minorities. Generally speaking these protections are in place and have evolved in line with the development of human rights in the west, but it is important to look at how abuses can and have taken place.

One of the clearest examples concerns the rights of homosexuals and 'gay marraige' particularly in bible belt areas in America. This example highlighted two problems, discrimination against the gay community and the problem of poorly worded referendums.

In the US state of Ohio, a referendum occurred supposedly on the subject of gay marriage. However, the wording used in the referendum question put to the public was very much open to interpretation.

The initiative asked Ohio voters to say yes or no to the following text: "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

The second sentence of the proposal was deemed to be ambiguous. Possibly intended to prohibit civil partnerships, it also discriminated against cohabiting couples. Sermons from various pulpits amidst statements from the Republican Party at a national level whipped up fervour. A number of Republican officials of the state of Ohio although opposed to gay marriage, opposed the text of the referendum in Ohio. The Ohio Governor, Bob Taft said "Its an ambiguous invitation to litigation that will result in unintended consequences for any two persons who share living accommodations."

The referendum passed on 2nd December 2004 with a 62% majority. The implications were far reaching. Gay people felt under siege, some professional gay couples left the state, those who remained felt alienated, misunderstood and criminalised. Meanwhile, a heterosexual man on charges of domestic violence had his charge reduced to the lesser count of assault on the grounds that he was in a partnership which the state of Ohio did not recognise as having any domestic legal status.

Seventeen US states have put same-sex marriage bans on the books as of the end of 2005. Many of these "protection of marriage" laws have also had vaguely worded language that either denies legal protections to same-sex relationships (including domestic partnerships) or affects legal protections for same-sex couples, including adoption, hospital visitation, the ability to enter into wills and power of attorney, and other protections. Some of these bans are currently being challenged in the courts as being unconstituitional.

The overall lessons seem to be that an advisory input by a legislative or electoral management body is desirable. In Switzerland, legislative advice is available. Additionally the Swiss adopt a policy that each referendum question should address a single issue only.

In Switzerland referendum proposals must comply with human rights, equality legislation and International Law before going forward and this would appear to be an essential protection in a system that uses direct democracy processess, however this does lead to the question of who should be responsible for deciding whether or not a proposal complys with these requirements. Some would suggest that Parliamentary protection would be insufficient, and bearing in mind that the courts must follow the law laid down by parliament it may be that neither of these options is adequate.

A Swiss federal proposal for recognition of gay couples in a union similar to British civil partnerships was challenged by the religious right and the issue went to referendum. The referendum was on the single issue of civil partnerships without reference to or comparative judgements between one type of union and another. A majority (58%) was attained for what is known in Switzerland as registered partnerships, which granted gay people the same rights as any other couple in respect of pensions, inheritance and taxes.

Swiss pro registered partnership campaigner François Brutsch said "we ourselves were surprised to find the people in the street more willing to listen and more supportive than we thought. The campaign has produced openness and understanding, leading to a broad consensus on a pragmatic proposal. Of course the Catholic church, virtually alone, is still against this law. But we avoided the sort of heated division between fundamentalisms that is blighting the American debate. The Swiss, who granted women the right to vote only in 1971 and didn't join the UN till 2002, are for once up there with those in the lead. It's a victory for pragmatism and rights".

Another spokesperson noted "The debate seems to have focused on "equality before the law" and not so much on homosexuality itself. According to the surveys, the Swiss are much more motivated by very practical, down to earth problems to solve, such as the right to visit a partner in the hospital or in jail, inheritance issues, etc. The question for most people, was not moral (are you for or against homosexuality?) but had more to do with the legal aspects. Swiss people like to see everything "propre et en ordre", clean and in good order. Providing a legal status allowing couples – even homosexuals – to organize themselves on practical issues was a step in this direction..."