Of course Justice Kennedy will vote for equal marriage

17 January, 2015 Leave a comment

So the United States Supreme Court has granted certiorari in from cases on state bans on the marriage of gay and lesbian couples: Obergefell v Hodges (from Ohio), Tanco v Haslam (Tennessee), DeBoer v Snyder (Michigan), and Bourke v Beshear (Kentucky). These are appeals of the opinion of Judge Sutton in the Sixth Circuit, who found state bans to be constitutional in November, while the Fourth, Seventh and Tenth Circuit Courts had previously ruled against state bans.

There will be two questions before the Supreme Court:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

I fully expect them to answer both questions in the affirmative, reversing the judgment of Judge Sutton, recognising a constitutional guarantee of equal civil marriage in all fifty states.

Anthony Kennedy, Associate Justice of the United States Supreme Court since 1988.

Anthony Kennedy, Associate Justice of the United States Supreme Court since 1988.

Speculation has already focused on Anthony Kennedy. They are right to do so but not as a swing vote who could go yea or nay on either side. Most analysis factors in the likely breakdown of the court as four liberal justices likely to strike down states bans (Ginsburg, Breyer, Sotomayor and Kagan) and four conservative justices likely to uphold them (Roberts CJ, Scalia, Thomas and Alito), with Anthony Kennedy as the swing vote. To my mind, this mischaracterises the record of Kennedy on this topic, and the role he is likely to play when it comes to the opinion of the court (simplistic as any categorization of justices is, even as I divide them here).

The US Supreme Court has issued three full opinions which extended constitutional protections to gay people against discrimination by government: Romer v Evans (1996), striking down an amendment to the Colorado constitution denying protected status to homosexual or bisexual people; Lawrence v Texas (2003), striking down anti-sodomy laws in Texas, and consequently in 13 other states; and US v Windsor (2013), striking down Section 3 of the Defense of Marriage Act, which recognized only marriage between a man and a woman for federal purposes. The author of all three opinions was Anthony Kennedy. None of these were equivocal or half-hearted. What makes anyone think he’ll go thus far and no further? Read more…

Stand by the open society

8 January, 2015 Leave a comment

Yesterday we saw a murderous attack in Paris because Charlie Hebdo, a satirical magazine, engaged in their right of self-expression. This is a fundamental human right, derived from the right each of us has to our own thoughts and mind, which is toothless without the ability to express this. This principle is meaningless if it defends and safeguards only various shades of grey. Oliver Wendell Holmes saw the value “freedom for the thought we hate” in 1929 (then in the minority, now an accepted part of US Supreme Court jurisprudence).  The European Court of Human Rights described this in 1976 as “one of the basic conditions for the progress of a democratic society and for the development of every man”. They went on to find that it “is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population”.

Satire has a long and venerable tradition in Europe, with its heyday in the political cartoons of the eighteenth century. Satire is not something designed or set out to be responsible or respectful.

But a liberal society is not devoid of the notion of personal responsibility. We are each responsible for our own actions and reactions. Outside of the specific and restricted partial legal defence of provocation from a temporary loss of control, we may not claim the behaviour of another to justify our own actions. Those who murdered journalists and the protection did so in full control of their senses, and must be held accountable for these actions.

It also means we hold them responsible, and not their own community and culture. We captured, they should be tried as any murderer would be, to the full rigours and with full due course of law.

And in standing by an open society, we should do more than defend full freedom of speech. We should also affirm the value of a liberal, tolerant society. Yes, we will permit satirists to mock religious beliefs. We will also allow religious communities to organise without discrimination. We should not question without good cause the differences of different customs. We must respect the individual rights of all; this means those who wish to wear a veil should be allowed to do so, whether or not we agree with the custom. One religion or another, or having none like myself, should neither confer advantage nor cause an obstacle.

This is not a time to divide one against the other, separate those living in countries based on the length of time of their various ancestry.

Without seeing any duty on those within particular communities to condemn or not to condemn actions of others no reasonable could endorse, we can also take time to recognise and value those within the Muslim community who are speaking against the barbarism committed in the name of their faith:

If we believe in the liberal values which were highlighted in our culture in the Enlightenment, but which have existed to varying degrees in nearly all cultures, and I certainly do, the attacks yesterday should not be seen as a test of them, but a reason to reaffirm them. We should aim towards an open society, where all are free to speak their mind, whether different cultures can mix, and learn from each other. A society where it is expected that we will not share in our sensibilities, that eschews uniformity and cultural stagnation. A society that strives to treat all truly equally before the law, not just in the court system, but in the administration of the state. This can be a society where each individual can thrive in the way they define for themselves, to make our choices in life. And this resilient observance of individual freedom could well be the only way our society will survive.

And Colorado makes it 25. How long before the Supreme Court brings it to 50?

7 October, 2014 Leave a comment

Today, the US Supreme Court denied certiorari to challenges to decisions of the Fourth, Seventh and Tenth Circuit Courts of Appeal, which had in turn upheld decisions of federal district courts that bans on lesbian and gay couples from marrying in Indiana, Oklahoma, Utah, Virginia, and Wisconsin contravened provisions of the US Constitution.

This had the immediate consequence of bringing equal civil marriage to these five states. The effect of supreme court not taking a decision led to the biggest expansion by number of states seen to date.

The day continued, as Colorado dropped its challenge. So how does the Circuit system work, and which states could be next?

Beneath the Supreme Court, the United States is administered by geographically-based courts of appeals. This table details the division, with those states which at the time of writing have equal civil marriage for gay and lesbian couples highlighted in bold:

1st Maine, Massachusetts, New Hampshire, Rhode Island
2nd Connecticut, New York, Vermont
3rd Delaware, New Jersey, Pennsylvania
4th Maryland, North Carolina, South Carolina, Virginia, West Virginia
5th Louisiana, Mississippi, Texas
6th Kentucky, Michigan, Ohio, Tennessee
7th Illinois, Indiana, Wisconsin
8th Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota
9th Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington
10th Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming
11th Alabama, Florida, Georgia
DC District of Columbia

A rule of precedent applies at each of these levels. The district courts in the states are bound by decisions of the court of appeals of their own circuit, just as the circuit courts of appeal are bound by the supreme court. This is why the attorney-general in Colorado dropped the challenge so soon after the news today; with the decisions of the tenth circuit court of appeals that found bans in Utah and Oklahoma to be unconstitutional fully in effect, the same would result with any defence of the ban in Colorado.

We should then soon see a similar situation in North Carolina, South Carolina and West Virginia in the Fourth Circuit, and in Kansas and Wyoming in the Tenth, from a combination of state officials not defending the bans, and district court judges coming to swift decisions based on these precedents.

We are awaiting decisions from the Sixth Circuit, which heard arguments in the beginning of August, and from the Ninth Circuit, which heard arguments at the beginning of September. While the court in the Ninth Circuit seemed to follow the trend of most federal courts, in being more critical of the arguments for maintaining the bans, this is less certain in the Sixth Circuit. Listening to the oral argument, I would agree with Stern that Judge Sutton didn’t seem eager to press ahead with this. However, a few things have changed since early August, from Judge Posner’s excellent, cutting judgment in the Seventh Circuit, to the denial of cert by the Supreme Court today.

In the Sixth Circuit, Judge Sutton asked on a number of occasions why he would not be bound by the precedent of the Supreme Court in Baker v Nelson (1971), in which the court wrote succinctly on a Minnesota case on a gay couple, “The appeal is dismissed for want of a substantial federal question”. This was a mandatory review, so was considered binding on the merits. However, with the denial of cert today, Judge Sutton can no longer hide behind Baker, as the Supreme Court has effectively that it doesn’t see the decisions favouring equality as a challenge to its precedent.

I don’t think the Supreme Court will hear a case unless and until any of the circuit courts uphold the constitutionality of a state ban. This could occur in the Sixth Circuit; it could also occur in the Fifth Circuit, which will be hearing cases relating to Texas and Louisiana soon. These are appeals to ban in Texas which was struck down, and a ban in Louisiana which will be upheld.

Equality advocates want the Supreme Court to hear a case on this matter sooner rather than later, to lead to an opinion that with one fell swoop would bring equal civil marriage to gay and lesbian couples across the whole of the United States. There is little reason to suppose that any of the five who voted to strike down a section of the Defense of Marriage Act in United States v Windsor (2013) would not also strike down all bans as unconstitutional, least of all the one who wrote that judgment, Justice Anthony Kennedy. The four who would have upheld DOMA surely suppose the same thing of their colleagues as the rest of us.

There is another interest too here, that of standing by the sovereignty and competence of lower courts. It is within their remit to determine constitutional questions within their jurisdiction; the Supreme Court should not hear a case simply because there’s public demand for a decision of a lower court to be extended.

It takes four justices to grant cert to a case. In the case of these circuit decisions, the five were of course happy to let them stand; the four may not have agreed with them, but not either wish to hasten the moment when the court would rule for equality for all.

This is why supporters of equality might paradoxically hope that either the Fifth or Sixth Circuit Courts of Appeals will decide to uphold bans. Not only would there then be a circuit split, but a result the anti-DOMA 5 would surely feel confident to see challenged before the whole court.

We’ll wait and see.

Why marriage might return to the US Supreme Court and why this time it’s different

29 September, 2014 Leave a comment

The new term of the US Supreme Court begins today, and their docket for this term will begin to fill up. The nine members of the court decide themselves which cases to hear, of the many appeals from lower court decisions across the country. Among they many they could choose this term are a number of defences to state bans on either the recognition or performance of marriage between couples of the same sex. This would lead to a decision affecting all US states by June 2015. It is not long since the Supreme Court last considered cases relating to marriage, when they ruled on United States v Windsor in 2013, leading the federal recognition of marriages between same-sex couples as performed by these states. Why makes these cases different?

Supreme_Court_US_2010A lot of the commentary in June 2013 spoke of the compromise the court reached, in striking down the ban on federal recognition in Section 3 of the Defense of Marriage Act (DOMA), while declining to consider the implications of the other case before it beyond California. This is a simplistic view of that case. This second case that year was Hollingsworth v Perry, a case which originated as Perry v Schwarzenegger, the culmination of a challenge to Proposition 8, the 2008 ballot initiative which had added to the California constitution the clause, “Only marriage between a man and a woman is valid or recognized in California”. In August 2010, US District Court Judge Vaughn Walker became the first of many federal judges to find a ban on same-sex marriage to contravene the US constitution. The state of California accepted the court’s ruling, and the appeal was taken up by those who had campaigned for Proposition 8. The Supreme Court that they did not have standing to do so, i.e. they did not have a direct stake in the outcome. It remained a matter for an organ of the state to defend a state law. Rather than being a formula drafted to dodge addressing a hot-button issue too soon, it would have been more questionable had they decided to consider the case. In 1996, the court came to a similar conclusion in Arizonans for Official English v Arizona, and the court should adhere to its precedents unless there are clear and compelling reasons to revisit a previous ruling.

Windsor ruled on Section 3 of DOMA, as this was the only question before it in that case. Writing the opinion of the court, Justice Anthony Kennedy held in clear and eloquent terms that the provision was unconstitutional. He wrote with an understanding of the change in attitudes we are witnessing, “until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage … Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community”. After acknowledging the many harms of such a ban on recognition, including to the children of same-sex couples, Kennedy concluded “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”

While Justice Kennedy did spend a considerable portion of the opinion defending the right of the states against the federal government in relation to marriage, this was in support of New York in including same-sex couples. Citing Loving v. Virginia (the 1967 case which ended state bans on interracial marriage), he wrote “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons”.

Following this judgment, many cases proceeded in federal district courts challenging state bans. The first judgment was in December 2013 in Utah, where Judge Robert Shelby cited not only the opinion of Kennedy in Windsor, but also the dissenting opinion of Justice Antonin Scalia, who predicted that it would be a very small step from striking down the federal provisions in DOMA to striking down the bans in the states. Ten other district court judges came to the same conclusion when considering state bans across the country, ruling each of them unconstitutional; in September, Judge Martin Feldman in Louisiana became the first to write a court opinion upholding such a ban.

While some of these decisions applied with brief effect, most of them were stayed pending further appeal, so marriage has not been extended in these states (Pennsylvania being an exception, where the state accepted the opinion of the district court).

The Circuit Court Appeals have issued opinions in the Tenth Circuit (cases from Utah and Oklahoma), in the Fourth Circuit (from Virginia), and in the Seventh Circuit (cases from Wisconsin and Indiana), and in all cases upholding decisions that state bans are unconstitutional. Crucially, in all these cases, officials from the state are defending the ban, distinguishing them from the situation in California.

The Supreme Court may now decide to take any one or all of these cases. If they choose not to hear those cases this term, then the circuit court decisions will stand, and marriage will be extended in those states, and nearly immediately in other states in those districts. However, the supreme court may wish to wait until there is a circuit split, i.e. when there are conflicting interpretations of the constitution from different circuit courts. It remains possible that appeals in other circuits will find in favour of the constitutionality of state bans; this seems quite likely to be the outcome in the Sixth Circuit, where Judge Jeffrey Sutton was quite skeptical of the merits of the constitutional case for equal marriage at oral argument in cases from Michigan, Kentucky, Tennessee and Ohio. If this occurs, it is almost certain that they will be heard this year.

While those of us following the developments will wait eagerly to hear from the court today, I wouldn’t be holding my breath. In 2013, I tuned in on a weekly basis to whether they would take the Perry case, and which DOMA case they would consider; it was not until 7 December that this information was revealed.

Which still means that before Christmas, we should expect to know of a date in the spring when the Supreme Court will hear cases relating to the constitutionality of bans across the whole United States, with an opinion in June. I will of course return to this, to outline in clear terms why I believe they both should and will find that there is a constitutional right for couples of the same sex to marry, throughout the United States.

Scottish Independence vote

17 September, 2014 1 comment

I arrived in Edinburgh this afternoon, less than a day before polls open in the most important vote they’re to have here in surely any of their lives. I had long planned to visit the land of Adam Smith and David Hume, but to be here for this vote is definitely an added bonus.

While the media cling to that trope of any poll in the high 40s of it being too close to call, I’d be quite surprised if this were to pass. I’m not sure either how much I’d be pleased or excited either way; but what would place me as a slight Yes supporter is a gut instinct that they can do it alone, that they can confound the fears supposed by No campaigners and Unionist leaders south of the border. I think an independent Scotland could thrive, just as we in Ireland did, or other small European countries like Denmark or Norway have too. In the longer run, I don’t see the structural benefits of being part of the United Kingdom, or the difficulty in leaving it, would outweigh the benefits to managing their own affairs.

A few things have struck me about the campaign. To be domestic about it, I’m surprised how little Ireland has featured as an example in this debate. Being a neighbouring isle with a border with different currencies, and the only other instance of a departure from the United Kingdom. Granted, there often seems to be a mist of ignorance for many in Britain surrounding the constitutional status of either part of Ireland. But we’d surely be a relevant context.

This referendum seems like it could only have got this close for independence with a Conservative Prime Minister in Downing Street. It’s notable how much this has been about social policy. Perhaps they assume it’s taken for granted by voters, but I’d have expected more emphasis on how Scotland would be taking its place among the nations of the world, a seat at the United Nations, a European Commissioner, embassies worldwide. That angle might have been a response to those who wondered how it differed from devo-max.

The left-leaning nature of the politics at the moment makes me curious about how politics might have evolved under independence, might the Scottish Nationalist Party have adopted a more centrist stand, to be perhaps the equivalent of Fianna Fáil. And would the other parties have changed their names, to break the link with their southern counterparts to broaden their base. Would the Scottish Conservatives again become the Progressive Party?

The currency and Scotland’s place within the European Union under independence remain uncertain. To some extent, they’re linked, as new members are committed to join the euro when they can. Scotland may well try to continue to use sterling without a tie to the Bank of England, and use the United Kingdom’s Maastricht opt-out. That will be difficult. But in the unlikely event of a Yes vote on Friday morning, I believe Ireland should act as a friendly neighbour, with whom we have some cultural ties, and do what we can to facilitate their entry/continuation in the EU, and compete with them ruthlessly too when we can!

Winning the Marriage Referendum: A Simple Message

As part of Dublin Pride, GLEN hosted a meeting in Wood Quay entitled, How to Win a Referendum. It was great to see such a large turnout, full to capacity, and a meeting focused on getting us over the line.

It will be a tough eleven to sixteen months (based on different estimates of when the poll will actually be). With a good campaign, I’m confident we can win this. But we need this good campaign, and to be prepared for all that could emerge. Tiernan Brady, who hosted the proceedings, closed by saying that if each of us can sleep easy when polls close knowing that there was nothing more we could have done, no one else we could have talked to, then we can look forward to the result the next day. That is no small task.

We need a simple, clear message. There is so much that could be said about the marriage question and the history and development of the acceptance of lesbian, gay, bisexual, and transgender people in Ireland and across the world, moving to a place where we can be integrated as we wish in society, while also celebrating our distinctive identities and culture. We could go on at length, having what would doubtless be worthwhile discussions. Some of this will emerge over the course of the campaign, and I wouldn’t seek to repress it.

But most of the voting public will hear but a fraction of the debate. We need to ensure that there is a dominant message in the campaign, one which they can relate to and understand. Why it matters that they vote Yes to this proposition.

I see three prongs that should be emphasised, to different degrees. The extent or the order we might emphasise these would depend on the platform, who you are engaging with, what they are raising, and how long you have with them. Marcella Corcoran Kennedy spoke of a conversation with a fellow passenger a train journey; that might give someone half an hour. On an evening canvass, you might be lucky to get ten seconds with someone at their door.

First, we should establish why marriage matters. Media debates on this question get caught up sometimes with a definition of marriage. But marriage has changed over the course of human existence, it is as varied across time and place as societies themselves have changed or continue to be different. Nevertheless, there are certain elements that remain true, certainly within generations in Ireland. Marriage both creates and extends a family. It is a public statement of the commitment of two people for each other, for richer, for poorer, in sickness, in health. It means being there for someone, looking out for them. If we get the chance to engage with people who are themselves married, ask them what it means to them.

Then we have the substantive issue, why it matters for us. The significance of being able to celebrate your lives together and love for each other in a way that has such universal understanding. Or if not you personally, your gay friend, your lesbian sister, your bi neighbour. That there should not be a distinction between the love and commitment of one couple and that of another. We need to hear whole families talk, parents talking about the love each of their children have found, and that what matters is not whether the person who their son or daughter wishes to marry is a man or a woman, but that it is someone who will be there for them. Not only will the uncertain voter connect more with a personal story than about a more generic message about a tolerant society, they will also be brought much closer to understanding the question and its meaning. The focus should not just be on the couples either, but also on the children currently raised by gay couples. Focus on the opportunity it gives them, that their parents could be treated just others, not to grow up with society making this distinction.

Third is the reassurance. That the second does not in any way detract from the principle of the first, but enhances it. That this is an opportunity to reaffirm the value of marriage in society. And also to engage with the question of religious marriage. We cannot ignore the fact that the vast majority of people in the country are either religiously observant or retain instinctive attachment to their faith. This should not be approached from a perspective of church against state. Each denomination and faith will of course continue to be free to make their own decisions about marriage as a religious sacrament. All the referendum seeks to do is to allow gay couples wed in the civil institution of marriage. Allowing this will improve the lives of these couples and their families, without in any way affecting marriage for anyone else.

But all this is has been far too long. We need to continue to find ways to distil the essence of these elements of the case in shorter, more concise forms. And that is but one part of the work ahead.

Categories: General

Best of luck to the liberals in Fianna Fáil

Yesterday I wrongly anticipated that Fianna Fáil would let Brian Crowley remain within the fold, despite his membership of the Group of the European Conservatives and Reformists. Earlier today, the Fianna Fáil Parliamentary Party approved a motion stating that Crowley had resigned the whip through his actions. He remains a Fianna Fáil member, as it is the National Executive who would have to decide he should be expelled for conduct unbecoming.

While the motivation for moving against Crowley today might have had as much to do Micheál Martin standing against a challenge to control of his party as any interest in parliamentary groupings or ideology, it could have the indirect effect for those members of Fianna Fáil so minded who are enthusiastic about their membership of the Alliance of Liberals and Democrats for Europe Party as a proof of their party’s commitment.

The events would not make me more or less likely to see Fianna Fáil as properly placed within ALDE. But to the extent it encourages those who are enthusiastic about promoting some form of liberalism within their party, as I have seen from some I know, I do wish them well.

As to what they will do between now and the 2019 European elections, so much in Irish politics could change between now and then.

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