Campaigning for marriage equality

With Leo on the night of the count.

In Jury’s Ballsbridge on the night of the count.

Saturday 23 May 2015 was definitely one of the best days of my life.

In the few days before, I had been becoming more optimistic about the result. But even still, the night before the poll, I barely slept, which wasn’t ideal, as I had the last of my summer exams on the afternoon of polling day! I voted as polls opened at 7, as I so often do. But it was great to go down there with my sister Ursula, then catch the 7.04 train from Bray. I tuned into what was happening on Facebook and Twitter, and was bowled over with the emotion by the enthusiasm for the occasion, how many were flying and sailing #hometovote. But I had to maintain focus on that exam!

At 5, as the class moved down to the King’s Inn, and the conversation stayed on the exam, I had only the referendum and its place in wider social change in Ireland on my mind, so went with a few of them down to the Bernard Shaw, which was in a more political mood.

Meeting the Dublin Bay South canvassers in Slattery’s that night, as polls were closing, I ventured to hope to one that we could have reached 58%. Yet the following morning, about an hour before boxes were to open, I noted that anything over 53.7% would put us above Washington, which approved of marriage equality by popular vote in 2012. But from early in the day as we tallied the votes, it was clear it’d be more comfortable than that. The first box I tallied was from Curtlestown, just outside Bray, with 212 Yes to 75 No. A few minute or two later, I saw a tweet from Tiernan Brady that Bundoran had a result of 60%, and it was clear this was an extensive win. I was pleased to find out later in the morning that my own box in Bray got a high Yes vote of 301 to 105.

Every vote was important. Though many of us went through periods during the campaign where we imagined that it was going badly, that we might lose, and that a win no matter how small was a win nonetheless, it was important that we got a clear result, across the whole country. This wasn’t an urban Yes and a rural No, as we’ve seen in previous referendums. I haven’t seen the tallies from Ballinasloe or Ballincollig, but they’re likely to have seen a Yes vote, like most other towns across the country, despite the predictions a few months ago of Sen. Rónán Mullen.

It was wonderful to be in Dublin Castle for the result, to see how much joy there was among the crowds who had gathered there and on the streets outside. Then to meet other canvassers in Jury’s hotel in Ballsbridge. It was especially nice to be there with two friends I had been with the Hist committee ten years earlier. Ten years ago I had been sidelining what feelings I had of being gay because I didn’t think it practical to pay heed them. Perhaps it was fear of attention, that I thought it would be easier to get by if I acted as if I were straight. Talking to one of those two friends that night, I wondered, “If only I had known then that we would be here today”. After thinking on what I said, her response was perfect: “If we’d known then, then today wouldn’t feel so amazing”.

That explains so much of the joy that we saw throughout the country that day. It wasn’t just that we were pleased with the result in itself, and relief that the work of the campaign had gone the right way, but how far we’ve come.

This great success wouldn’t have happened without those who worked at each stage of the way. Some campaigners who worked in the foundation of the Campaign for Homosexual Law Reform in 1975, such as Sen. David Norris and former president Mary McAleese, who played a key role in this campaign. Norris’s cases, represented by former president Mary Robinson, with the High Court and Supreme Court finding against him, before his victory in the European Court of Human Rights. The Gay and Lesbian Equality Network (GLEN), were prominent in the work leading up to decriminalisation in 1993 and civil partnership in 2010, as they were in this campaign. There was Marriage Equality, with its single-issue focus on this campaign, and the very important work from Michael Barron and others in Belong To, with their focus on the needs and concerns of young lesbian, gay, bi and trans people in Ireland. Each year at Pride, we see the wide range of organisations working to achieve and promote equality, and all of these deserve credit for the change in the culture that contributed to the high result.

One of the great things of these recent years for me was to get to know these people well, to work with them. I’ve made many great friends over these years. My own avenue to the campaign was through politics. Contrary to what Una Mullally wrote during the week, I do see a strong role for parties as a source of political change. Not everyone can find a party that suits them, and for others, the focus of a particular campaign or organisation serves their aim better. But the energy we saw in the campaign should hopefully find its way into the political process, especially as we look ahead towards the coming general election. For the campaign to be successful in the way it was, it needed both the approval of the political process, in the establishment of the constitutional convention which proposed it, and in the passage of the amendment bill through the Oireachtas, and also the experience in canvassing. Our campaign in Wicklow was led by Ian McGahon, who had been a local election candidate for Labour, and as well as myself from Fine Gael, we also had James Doyle, who stood last year for Fianna Fáil. This combined experience mattered, even as the vast majority of those who canvassed with us had never done so before. We also benefited in different ways from the support of our local TDs Andrew Doyle, Simon Harris and Anne Ferris.

I was quite pleased with the role Fine Gael played in this campaign and the political process leading up to this. When I joined the party in 2009, I had recently begun to come out as gay, so it was very much on my mind. But at that stage, while I saw a dynamism in the party in many areas, there were a few conservative voices on this issue, most notably Lucinda Creighton, who caused us a lot of trouble before the 2011 election – though she too came out in favour in the end!

It was Charlie Flanagan’s speech as Justice Spokesperson in response to the civil partnership bill in November of that year that confirmed for me that there was a place for me in the party, that I could imagine the party speaking out strongly in favour of equality. Even after a motion I put to the 2010 YFG Summer School was narrowly defeated, I stayed on, because of that speech, in which he hoped it would be a step towards full equality. I was elected to the YFG National Exec, appointed as Director of Policy, and then proposed the motion again at Summer School in 2011, when there was barely any opposition to speak of. It was great to see the change in the organisation, with so many there wearing white ribbons on their lapels, which Maeve Howe, who was seconding the motion with me, had made to promote the motion.

Fine Gael LGBT marching in Dublin Pride 2012

Fine Gael LGBT marching in Dublin Pride 2012

At the 2012 Fine Gael Ard Fheis, another friend of mine from Trinity, Mark O’Meara had proposed a motion in favour of marriage equality. Yet the party watered it down to the focus to one on the constitutional convention. It was through the leadership of Jerry Buttimer that we saw change take hold within the parliamentary party. He was the first Fine Gael TD to come out as gay, and I was proud to join him from the start in the work of the newly established Fine Gael LGBT. We were small at first, as seen in pictures of our delegation to Dublin Pride that year, but we grew in prominence, and played an important role in bringing the conversations on the lives and relationships of LGBT people to party members. We had great assistance in establishing ourselves from our general secretary Tom Curran, who shared his own family story during the campaign.

There are many others in the parliamentary party I could mention here, though I would pay a particular tribute to Marcella Corcoran Kennedy, our vice chair on Fine Gael LGBT. We were in a good position with both ministers for justice during this period, with Alan Shatter and Frances Fitzgerald showing a clear commitment to equality, and through their efforts at different stages, we saw the passage of the comprehensive reform of family law in the Children and Family Relationships Act. During these few years, the understanding of Enda Kenny has grown, from when he was jumping over flowerpots to avoid answering questions, to dropping into our Christmas drinks in Panti Bar, and speaking with a true insight when launching the Fine Gael campaign.

Fine Gael LGBT at Dublin Pride 2014

Fine Gael LGBT at Dublin Pride 2014

The end of the campaign brought with it a strange feeling. We had a great celebration at home on the Sunday. Then in the days after, I came across a few in work who had voted No. Some were light-hearted about it, but others were bitter. Despite the high Yes vote as evidence of Ireland as an open society, there were still many who voted No. The result will certainly make lesbian, gay, bi and trans people feel more relaxed and comfortable in our country, as we saw in reports of gay couples feeling more confident holding hands in public since the vote, but also with an awareness that homophobia still exists. On the other hand, it was to be able to just walk away from comments, not be in campaign mode, where I’d feel an obligation to counter what they said for any wavering voters there. And I should say, most in work were very positive in the days after the referendum, some of them having spotted me in the news coverage.

I also heard of gay people who knew of immediate family members who had voted No. Exhilarating as the campaign was, it wasn’t an easy one. Putting it to a vote wasn’t all positive. It was sometimes difficult to canvass, not knowing what the response would be. I’ve had negative responses before, canvassing for both the PDs and Fine Gael, but that wasn’t personal in the way this was. But though my exam schedule meant I couldn’t go out as often as I’d like, it still always felt worthwhile doing so, and was glad I did what I could.

The emotional comedown was difficult, knowing that it was over. I know I’m not alone in that, and it’s good to see a focus from the Yes Equality campaign on emotional well-being. The campaign wasn’t easy, putting so much of ourselves out there, directly or indirectly, having our lives, or the lives of friends or family, as a matter of public debate or disagreement. That’s part of what took me time to write this. The relief of knowing that this was no longer something I’d have to think about, at least as far as Ireland goes. It will be a while before it truly sinks in, whether it’s after what will be an amazing Dublin Pride, the legislation is enacted, or we see the first marriages take place. But there are already small effects of the change. It is a great feeling to know that I will not have to campaign on this again. I will watch with interest what happens in other countries, how big the majority will be on the US Supreme Court, but no longer with half an eye on the momentum it will build for change here.

Almost immediately, we heard people asking what’s next. It was great to see progress so swiftly on an improved gender recognition bill, one of the best in the world. The trans members of our community had stood with us during this campaign, like Sam Blanckensee here in Wicklow, and it’s great to see that there is something for them too to have Pride in their country this year. Whether someone identifies as male or female, or somewhere along the spectrum, should be their decision alone, a simple matter of a free choice in a free society. Given the prevalence of single-sex school, I hope the review in two years which forms part of the bill will make provision for those under 16.

There are, of course, many other social issues in need of legislative and constitutional reform. There always will be. Not all these campaigns can be compared precisely in how they will succeed to this campaign for marriage equality. The rapid change in attitudes that occurred as more people came out to their family and friends, and in the context of a global debate and legal change (unfortunately in both directions), cannot be so easily replicated. But the lesson must be to maintain focus in further campaigns on the lives and experiences of individuals, and how restrictive laws affect them. We have a great group of people in Wicklow, and we mean to find ways to continue to campaign.

It was a great campaign to be involved in, and one I’m sure I will always cherish. And that day has made possible so many great days for so many, even better than the win itself, not just this year, but forever more.

Vote Yes on Lowering the Age of Eligibility for Election to the Office of President

I will also vote Yes to lower the age of eligibility for the office of president. At 21, adult citizens are eligible to stand in a general election and from there to sit in government. I cannot see any reason why these adult citizens should be excluded from the onerous nomination and election process, for a further fourteen years. While we might not be able to imagine who such a candidate might be, who could represent the nation at such a young age, why should we be happy to make the statement that no person under 35 could have that capacity? Why exclude the possibility and limit the choice of the people absolutely in this respect?

There have been the rare examples across history of those who led movements of change at a young age, who inspired their community and their country, including from the time of the foundation of our own state. Rare as they may be, let’s not deny such a candidate the chance to put their name before the people.

Many have complained that it’s too small a reform. There are amendments I’d rather be voting on. But it made sense to hold one with the marriage referendum that wouldn’t distract from that important debate. And if even small, unobjectionable measures of political reform don’t get public support, what makes anyone think a government will be eager to make the case for a more substantial measure of political constitutional reform?

Why a Yes vote on Marriage Equality this Friday matters to me

This is the sixth referendum campaign I’ve taken part in. I’ve also been to the count centre after every general and local election since 1997. I was emotionally invested in the result on each occasion. I have both great and difficult memories from those count days. Yet I will watch the results come in on Saturday with more trepidation than ever before. This isn’t normal politics, whether in the distribution of resources, or arrangements of political structures. This referendum is about me, and others like me, a political decision on our lives and relationships, and our place in Irish society.

It is the natural step in the decline of animosity and the growth of empathy towards lesbian, gay, bisexual and transgender people in Ireland and elsewhere, that we would have the same opportunity to marry as anyone else. Slowly at first, and then in rapid succession, other countries and territories have come to view the limitation of marriage to heterosexual couples as an unjust exclusion, and changed their laws to reflect this new insight and understanding.

We have seen since the beginning of this year in particular what a Yes vote would mean to so many people, what a difference it would make. Those who were quiet for decades about this part of their lives, silent even to themselves, who felt compelled to speak out. And felt so much better for it. And we can think of young people, beginning to realize their difference from their peers, how wonderful the effect of a Yes vote would be for them, how devastating the effect of a No vote.

Being gay is not a small part of who I am. It doesn’t feel right to say that I just happen to be gay. It is not an incidental feature like height or hair colour, but a distinguishing feature of one of the relationships most important to me. From when I properly realized that future romantic relationships would most likely be with other men, it was something I could not but see as an important part of who I am. Indeed, it was before then, though I did not yet fully realize it. It is important because of where we now stand in society. A successful result will allow us each to determine its significance for ourselves. I look forward to the idea that my romantic life will no longer be a political issue.

This isn’t about any need for validation, but a commitment that society should treat us all with equal concern and respect, and that where the state is involved in our lives, our laws should recognize our equal dignity. With civil partnership and family law reform in place, to withhold marriage is such an arbitrary and needless act of discrimination.

When I attended a wedding service of two friends of mine earlier this year, something that stood out is our part in that. Not only did they commit to each other, for better, for worse, but we, the community of friends and family gathered there, also pledged to stand by them. The vote this Friday is that moment writ large. It is a chance to say clearly that when two people choose to make this commitment, we will stand by them, and hold their relationship as something to value.

So vote Yes. Be part of what should be a great moment for so many of us. Plan your trip to the polling station on Friday, and make sure others you know have done the same. Every vote will send a message, and every Yes vote will help secure a more equal Ireland.

Will John Roberts find a constitutional right to equal marriage?

26 April, 2015 1 comment

John Roberts, Chief Justice of the United States (from Wikipedia)

Chief Justice John Roberts is usually a reliable vote among the conservatives on the nine-member court. Yet in NFIB v Sibelius (2012), he voted with the four liberals to find that the Affordable Care Act (ACA) was constitutional. He did so on narrower grounds than the four liberals, relying on the taxation power rather than the commerce clause. It is widely accepted that Roberts had originally intended to strike down the law, but changed his mind in the month beforehand, based in part on the political calculus that it would damage the Court’s political reputation were it to strike down Barack Obama’s key legislative achievement. It would have appeared too partisan for the five justices appointed by Republican presidents to vote to strike it down, with the four appointed by Democratic presidents to vote to uphold it, and affected the court’s reputation as a neutral umpire calling ball and strikes.

The ACA is back before the court this term, in King v Burwell, not on the validity of the law, but its application. But if Roberts did not hinder it in 2012, he is unlikely to do so now after so many have already taken advantage of it. And in this case, he has cover from Anthony Kennedy, who voted against the ACA in NFIB, seems likely to uphold its application in this case.

The blockbuster case of this term is Obergefell v Hodges and its related cases, which will be heard this Tuesday, and is likely to settle the question of equal marriage for gay couples in the United States. The court themselves admit the difference between it and other cases this term with a link to briefs for the case on their home page, and agreeing to release the audio recording of oral argument on Tuesday, rather than waiting till the end of the week as standard.

There’s no reason to expect that any of the five justices who struck down the Defense of Marriage Act in United States v Windsor (2013) will not apply similar reasoning to state bans on same-sex marriage. But Roberts was in the minority in Windsor. Why would he vote to strike down these bans at a state level if he would not do that to the federal legislation two years ago?

John Roberts was appointed as Chief Justice in 2005 at the age of 50. Four of the associate justices are aged between 76 and 82. We should expect that Roberts will remain leading the court till at least 2030. Roberts is politically astute enough to know that this case will be regarded as a landmark. Will he want to risk the opprobrium of legal analysts in a decade’s time appearing before him wondering how he could have got it so wrong? It’s easier for Antonin Scalia, not being in the pole position of Chief Justice, or indeed Samuel Alito, who like Roberts was appointed in 2005 by George W. Bush.

Scalia and Alito both gave lengthy dissents in Windsor, with which Clarence Thomas joined. Roberts, by contrast, wrote a succinct dissent, of a mere three pages. He joined Scalia only on the jurisdictional matter, finding that the court should not have decided the case at all, as the United States government was not contesting Edie Windsor’s claim. Roberts’ short dissent justified the Defense of Marriage Act on the basis of uniformity of marriage rules, rather than the blistering terms of Scalia’s dissent defending the enforcement of traditional moral and sexual norms.

Might Roberts wish to deprive Kennedy the pleasure of his place in history of completing a series of judgments in favour of constitutional protection to gay people. From Romer v Evans (1996), to Lawrence v Texas (2003), to United States v Windsor (2013), Anthony Kennedy wrote all of the case law progressing gay equality. Eric Segall recently wrote about the rivalry between Roberts and Kennedy for perceived control of the court.

The author who writes opinion of the court is assigned by the most senior justice in the majority. If the majority is the same five as in Windsor, that would be Anthony Kennedy, who will surely assign it to himself. But if Roberts were to join the majority as the sixth vote in favour of requiring all states to license a marriage between two people of the same sex, he could then choose to assign the opinion to himself.

So, both because he should be able to project the landmark status of the decision, and because of rivalry with the other moderate conservative voice, don’t be surprised if Roberts strikes down the bans. But aside from the politics of it, there’s nothing in any of his other votes on social reform cases to suggest that he will do so!

Of course Justice Kennedy will vote for equal marriage

17 January, 2015 1 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.

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