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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.

Fianna Fáil’s liberal adventure

23 June, 2014 1 comment

A little over five years ago, I wondered how long Fianna Fáil would last within the European Liberal Democrat and Reform Party, now the Alliance of Liberal Democrats for Europe. It looks like we have our answer.

Brian Crowley’s recent European election leaflet (party logo on reverse) Image from Irish Election Literature

As we all heard this morning, Brian Crowley left the ALDE Group to join the European Conservatives and Reformists. While probably most identified here with the British Conservative Party, it has expanded since the elections to cover a spectrum of conservative nationalist parties, with a variety of unpleasant and nasty parties, and those with regressive social attitudes. A dominant feature of these parties is a resistance to immigration, whether from the Danish People’s Party, the Finns Party, the Independent Greeks, or indeed most of them. We’re talking about actual thugs here, complete with criminal records. They also recently added to their numbers the explicitly theocratic Dutch Reformed Party, which until 2005 did not allow women hold offices within the party.

Crowley was always an anomaly within a liberal democrat group, and as Fianna Fáil’s sole MEP since the May elections (despite managing to outpoll Fine Gael, which got four seats!), it was very easy for him to switch groups unilaterally. Crowley was fond of the old Union for Europe of the Nations Group, of which he was vice president until 2009, and is probably more at home in ECR than in any of the other groups.

Most Fianna Fáil members I know would not support the ideology of the ECR. Most of them would variously sit comfortably in any of ALDE, in the European People’s Party (of which Fine Gael is a member), or the Progressive Alliance of Socialists and Democrats (if, like the Italian Democrats, not actually joining the Party of European Socialists). And Micheál Martin is understandably furious.

But will they forego their only MEP? Probably not. They might have described his actions as ‘unacceptable’, but we’ll soon see if they are in actual fact accepted. Just as there was fluster about the possibility of Mary Hanafin facing disciplinary action, which all came to aught, this will probably blow over. Even most of the Fianna Fáil members who would not go anywhere near the ECR would be unlikely to see it as a principle worth losing a poll-topping MEP for, though I certainly know a small few who will stick to that stand.

All of which will surely make Fianna Fáil’s membership of ALDE untenable, if they can’t prevent an MEP from joining a group antithetical to theirs on so many levels. In the short term at least, Dick Roche will certainly have an awkward time at the next meeting of the ALDE Bureau, in his capacity as Vice President.

Tony Benn

I was sorry to hear of the death of Tony Benn. I had the pleasure of meeting him in early 2007, when he was one of the first first guests of my time as correspondence secretary of The Hist. So I was with him for the best part of that day, from the airport, to Newstalk for George Hook, arriving to the GMB for his talk to the Hist with little time for a snack, and then to his hotel. Though he hadn’t eaten much that day, he was happy with a short bite to takeaway to eat because he didn’t want to keep the crowd waiting. He enjoyed talking with the taxi driver, who let him smoke his pipe.

Most of the crowd were various assortments of Dublin left, the first question from the floor (I noted in my own diary) was, “I’m from Trinity Labour. What can I do to promote socialism?” The few there from the Hist Committee asked questions not on socialism itself, and he told us the figures of the twentieth century he most admired were Gandhi and Desmond Tutu.

Of course, my own political views differ from his substantially, whether on the role of unions, the control of the state on the economy, or European integration. While he at his most influential in the Labour Party, it was, I believe, far less fit to govern than in the years before or after. But underlying it, he had a democratic, republican instinct, stretching back to the old English radical tradition, which I could certainly identify with. That day in the Hist, and on many other occasions, he proposed five questions demanding accountability we should demand of all those in power:

what power do you have?
where did you get it?
in whose interests do you exercise it?
to whom are you accountable?
how can we get rid of you?

Though I would not tout many of his as the best of political ideas, in character, determinism, charm, intellectual engagement and commitment, he typified politics at its best.

Categories: British politics Tags: ,

Defining defamation and the reality of homophobia

30 January, 2014 3 comments

For the last few years, it’s been known that we will have a referendum on whether gay and lesbian couples can marry in this country. I’ve generally been cautiously optimistic, believed that with a good campaign, we will win this. I trust in the fundamental decency of the Irish people, when asked to consider this, will think of those they know, and give us the same chance to marry as others have.

Till this week. This was never going to be an easy campaign. Now we see it’s not going to be a fair campaign. Rory O’Neill spoke honestly on the Saturday Night Show about how media commentary is still one of the few areas he regularly witnesses speaking in a discriminatory way towards gay people. Let’s not forget that in the article about gay priests by Breda O’Brien which he referred, she claimed Roman Catholic doctrine on gay people (that we are intrinsically disordered towards an objective moral evil) is fair enough because they view gay relations in the same way as lying or gluttony, while not hating those who lie or overeat.

Someone who groups gay relations with these other traits should expect their motives questioned when they proceed to argue that we should be denied the chance to marry or raise children. Or similarly John Waters, who assumes we are engaged in a massive plot to bring down marriage because of envy, should not expect anyone to think that he thinks of gay people in the same way as the rest of the population. To question our motives, to think the time someone like myself has spent on this cause is about anything other than a hope that I might marry, and that any two who find that happiness in each other can do the same. And I will wonder about an institute which is reckless as to the relevancy of a study it cites in a proposal (which was otherwise poorly-referenced) to the constitutional convention to argue against our equality.

Rory O’Neill’s analysis was sophisticated. It was O’Connor who raised the word homophobia, and O’Neill then considered how prejudice can exist within us, to a greater to a lesser extent, and that it is something that we need to be aware of within ourselves. Someone who is “spending so much of [their] life, devoting energies to writing things, arguing things, coming on TV to do anything to try and stop people achieving what they think they need for happiness” does need to take the time to consider if what they are promoting is properly something they can stand by.

All of the material that Rory O’Neill challenged is in the public sphere. Anyone can read the articles Breda O’Brien, John Waters or David Quinn write week on week in the two bestselling daily newspapers and make their assessment. They can each respond in these columns if they wish. I fail to see how the comments on the Saturday Night Show could “injure their reputation in the eyes of reasonable members of society”. All they tell us is the assessment by a prominent gay activist of the journalistic and lobbying work of individuals mentioned. Someone might read their work in a differently in light of O’Neill’s assessment, but it could not be his comments that cause any injury to their reputation. To my mind, this is before we consider the defence of honest opinion, provided in section 20 of the Defamation Act 2009. (Again, ultimately I’ll defer to those with more legal knowledge; perhaps Brian Barrington, whose open letter was widely distributed yesterday.)

What followed was a shameful sequence from RTÉ, which bear repeating: action was taken against RTÉ and Rory O’Neill by members of the Iona Institute and by John Waters; the section of the interview was removed, with an odd reference in the explanation of it to the unfortunate death of one of their colleagues, despite the fact that he was not named and that the death occurred after the interview; Brendan O’Connor read an obsequious apology, which sounded as if was drafted by the staff of Iona; and RTÉ paid damages to the Iona Institute.

The term Orwellian may be overused, but as the use of political language to describe exactly the opposite of what it means, the line in the apology “It is an important part of democratic debate that people must be able to hold dissenting views on controversial issues” in explaining why they censored a guest and paid damages to those who didn’t like his comments fits the description perfectly. Iona also talk without any sense of irony of O’Neill attempting to bring the debate to an end, while they are the ones who have spent the past 12 months sending solicitors’ letters to their harsher critics.

While I’m sure Iona are delighted to have some more money for their campaign against equality, I don’t think this was mainly about cash. This will have a chilling effect on RTÉ scheduling over the next year and a half. They will be much more cautious about when and how they have outspoken lesbian, gay, bisexual or transgender guests on air. This will lead to our lives being discussed only from the perspective of a live, controversial debate. Instead of treating the fullness of our lives. This is why I am now much more concerned for the result, if it will take place with terms of debate set by the Iona Institute.

It’s trivial to say it, but most of our lives are just plain ordinary, including our romantic lives. But homophobia is unfortunately still part of our lives. Far much less so than it was, and to a rapidly decreasing degree. But it exists. I’m lucky to have experienced relatively little, but I have in my time heard homophobic comments, even from people I’ve been friends with, and not always had the guts to call them up on it. I know people have experienced much worse. There is still homophobic violence or verbal abuse. This is one of the aspects of why next year’s referendum result matters. Even for those who may not wish to marry, or for young people who are many years from even considering marriage, it matters. For as long as the state continues to treat us differently, others will take the opportunity, consciously or subconsciously, to do the same. Conversely, a strong vote in favour of equality will surely quicken the pace of the decline of homophobia as an acceptable prejudice.

So yes, our focus ahead of the referendum will be on the happiness we hope for from marriage, to do so just as our parents could, for the same reasons as anyone else would. But we can’t ignore or sideline the context of a legacy of prejudice against us and the problem with homophobia, however softly spoken.

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