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.
While I gather my thoughts and feelings about the live issue of free speech and suits for defamation, another case relating to free speech, the media and a suit for libel came to mind.
Fifty years ago this month, the US Supreme Court heard the cases of New York Times v. Sullivan and Abernathy v. Sullivan. On 29 March, 1960 The New York Times published a full-page advertisement from the Committee to Defend Martin Luther King. It included the names of twenty religious ministers working in the south in the civil rights campaign.
The Montgomery Police Public Safety Commissioner L. B. Sullivan sued both The New York Times and four of the ministers named, Ralph Abernathy, S. S. Seay, Fred Shuttlesworth and Joseph Lowery, for $500,000, based on inaccuracies in the text of the ad. For example, the ad stated that King had been arrested seven times, when in fact he had been arrested four times. The Alabama trial court and supreme court both found in favour of Sullivan, and awarded him the full sum of money. This led to similar suits, which would have hurt both the civil rights movement and the possibility of press coverage of abuses in southern states quite severely. It was widely believed that this was the ultimate aim; not the award of money to Sullivan and others, but to ensure that they could continue to act without scrutiny.
The European elections will be held on redrawn constituencies as Ireland will lose a seat, so that we have 11 rather than 12. Dublin remained as it ever has, with the rest of the state divided with line midway across, such that we in Bray share a constituency with Kerry and Limerick, and everything to our south.
We’re in the midst of candidate selection, and some of this is based on speculation, but this is my current prediction:
Dublin (3): Brian Hayes (FG), Lynn Boylan (SF), Emer Costello (Lab)
North-West–Midlands (4): Mairead McGuinness (FG), Pat The Cope Gallagher (FF), Matt Carthy (SF), Marian Harkin (Ind)
South (4): Seán Kelly (FG), Brian Crowley (FF), Liadh Ní Riada (SF), John Bryan (FG)
This would leave party totals as:
Fine Gael 4 (no change)
Sinn Féin 3 (+3)
Fianna Fáil 2 (–1)
Labour 1 (–2)
Independent 1 (no change)
Socialist Party 0 (–1)
Or in terms of European Parliament groups:
European People’s Party 4 (no change)
European United Left/Nordic Green Left 3 (+2)
Alliance of Liberals and Democrats for Europe 3 (–1)
Progressive Alliance of Socialists and Democrats 1 (–2)
A lot could change, of course, but at the moment, the one of these above I’d be least confident about is the third seat in Dublin. I wouldn’t be surprised to see that go to Fianna Fáil, who select their candidate on Sunday. They are choosing between Tiernan Brady, Geraldine Feeney, and Cllr Mary Fitzpatrick. I know Tiernan Brady, who was formerly a Donegal councillor, and has worked for a number of years with GLEN (the Gay and Lesbian Equality Network), and would be quite happy to see him take that third seat. Mary Fitzpatrick was clearly sidelined by Bertie Ahern in 2007, and so might be seen by voters as a break with the old leadership.
At the moment though, I think sitting Labour’s MEP Emer Costello will hold. She was co-opted in 2012 to the seat won by Proinsias De Rossa. A recent poll showed Labour and Fianna Fáil tied at 14% in Dublin. While Labour will not be as transfer-friendly, the votes of eliminated candidates on the left should benefit them over Fianna Fáil. If the other regions become lost causes, Labour will likely concentrate all their efforts in Dublin, which could help her over.
I’m also working from the assumption that Paul Murphy, who replaced Joe Higgins as the Socialist Party MEP in 2011, will not hold, particularly as he faces a challenge from People Before Profit Cllr Bríd Smith for the far-left vote and organisation. While Joe Higgins had a force of character and presence to win the third seat in 2009, Murphy won’t have the same advantage. He also received a lot of support from those who wanted to keep Fianna Fáil out of the third seat then, and who weren’t going to vote for Sinn Féin’s Mary Lou McDonald. Paul Murphy has been visible since his co-option, but I don’t think it will be enough to be competitive against the larger parties’ organisation.
Elsewhere, I don’t think Jim Higgins will hold up against the strong field, but I think he would do as well or better than another Fine Gael candidate. Short of a strong new force or candidate, the results in South and North-West–Midlands seem straightforward from here.
Overall, these results would be a solid election for Fine Gael, which has been the largest at a European level since 2004; a very good election for Sinn Féin; Labour would be back to their traditional place of usually having just the one in Dublin; and somewhat disappointing for Fianna Fáil.
However, European elections are of a different sort. If we want to see how party support and organisation is ahead of the general in 2015 or 2016, the locals will be where to look towards.
The conference from the Reform Alliance later this month should be interesting to watch. I might even call in to it. While Lucinda Creighton did insist on Prime Time yesterday that it isn’t a political party, it certainly seems to be heading that way, with a date of September mentioned. If Stephen Donnelly joins them, my Wicklow homeland would become a stronghold for them. I’ve been asked more than once by friends and family if I’d consider joining them. There’s really barely a hope of that.
It’s not just that I’m enjoying my current activity in Fine Gael. If a party emerged that was closer to my ideals, and had reasonable prospects of being viable, I’d give them a fair hearing. This new group doesn’t seem likely to be either. When I spoke in favour of dissolution at the last conference of the Progressive Democrats, among other things, I said that if we were to continue, we could inhibit the development of our ideas in another political force. The Reform Alliance is not what I had in mind.
Let’s jump back to the 1980s, to the events that led to the formation of the PDs. Des O’Malley first lost the Fianna Fáil whip in 1984 because he was willing to consider political solutions in the New Ireland Forum Report other than a united Ireland (all of which gave much more power to the Irish government than the later agreements). He was then expelled from Fianna Fáil in February 1985 after he stood by the republic in the debate on the Family Planning Bill, arguing against that party’s tactical opposition to modest liberalisation of contraception laws. While an Independent TD, O’Malley led the charge against Minister for Transport Jim Mitchell’s ridiculous notion that it should be illegal to sell a place ticket lower than Aer Lingus, paving the way for cheap flights and Ryanair. Mary Harney lost the Fianna Fáil whip in November 1985 after she voted in favour of the Anglo–Irish Agreement. She and O’Malley were joined in December 1985 at the launch of the new party by Michael McDowell, a former chair of Dublin South-East Fine Gael, who was unsatisfied with the Fine Gael/Labour management of the economy. As well as realism on the national question, moderate personal liberalism and an economic focus on lower taxation rather than government control, a large impetus for the strength of the party was opposition to the politics of Charlie Haughey.
I’m disappointed with the result of the referendum on Seanad abolition. There’s no point now in detailing once more why I thought this would have been a good idea and a worthy reform of our political system. The result was not what the polls predicted, and while polling firms might have found it difficult to estimate likely voters, there also was a definite swing against us. With this short time to consider the result, I think the blame for that most likely rests with the Taoiseach and his closest advisors. When he announced this in 2009, I thought (or hoped) it was a sign that he was truly embracing an element of radical and substantial political reform. Yet during this campaign, he did not show the confidence to explain and defend it to voters. I know of people who were leaning in favour of abolition but who voted against because they did not believe he should be rewarded and credited with such a change if he would not stand up for it. If it were a long-held party policy, or an initiative of another minister, it would have been fair enough to have delegated it to the director of elections, as usually occurs at referendums. But he was the one who reintroduced this to the political conversation in 2009. As the leader of our government, Enda Kenny should have explained clearly and plainly the merit he saw in this.
Party members were let down by this. A defeat in a poll is never a pleasant experience, and this is one that could have been avoided. The internal conversation and debates should have started long before the summer. And party members should have been involved in formulating our arguments. There is a time and a place for focus groups, but the political instincts of motivated and interested members should be respected and sought. We ran with poor campaign messages. The largest party in the country could never have credibility talking of the benefits of fewer politicians. The discussion of cost does have a place, but it should not have been the starting point. Not to mention some embarrassing stunts, which are probably all right as moments of levity during a campaign, but not when they become key pieces of it. We needed a wide-ranging and targeted campaign, one that showed from the start that it was a position of substance and principle, that stood up to scrutiny, based on solid research.
Fine Gael needs to learn from this. We didn’t learn from the referendum on Oireachtas Inquiries; here we are two years later with practically an identical margin against. Reform that requires constitutional amendment needs to be framed in a way that appreciates and addresses the legitimate suspicion the public have when the executive seeks to alter the arrangements in the constitution.
In the RDS count centre this morning, a non-aligned campaigner said to myself and a member of a different party that for people like us, it was a tribal matter. It wasn’t that for me. Had Fianna Fáil or any other party proposed this, and Fine Gael been against, I would still have publicly supported this. I am not right now disappointed for Fine Gael that we as a party have suffered a defeat in a poll. I am disappointed in Fine Gael, and I things change have to change.
And to those who opposed abolition, well done on a well fought campaign.
All we can determine from yesterday’s result is that the voters wanted to keep a second house. We should now think carefully and critically about how its 60 members should be selected and what their role should be.
I will then vote Yes to establish a Court of Appeal (the Thirty-third Amendment of the Constitution Bill). Over the past decade, there have been considerable and growing delays in the Supreme Court hearing of appeals from the High Court. Our Supreme Court deals with much more than its equivalents in other countries. In our constitutional system, questioning pertaining to constitutional interpretation must take precedence there, such that many civil matters are delayed in their appeals from the High Court for up to four years. Ireland has been found liable in both the European Court of Human Rights and European Court of Justice on the grounds of unreasonable delay. Having a speedy process in civil cases will set us in line international obligations on issues such as extradition and child abduction, while also making us more attractive to multinational firms, who often have concerns about lengthy litigation. These problems were detailed by Susan Denham, now Chief Justice, in 2006 in the Judicial Studies Institute Journal.
The same amendment will also remove the requirement on the Supreme Court to deliver only one judgment in cases challenging the constitutionality of laws. In cases not relating to the constitutionality of laws (e.g. high-profile cases AG v. X. on abortion or AG v. Hamilton on cabinet confidentiality), and in cases relating to laws enacted before 1937 (e.g. Norris v. AG), dissenting judgments do contribute to an understanding and development of the law, without undermining the authority of the majority judgment. These development and the value of dissenting could not have been foreseen when de Valera proposed this change as one of many in the Second Amendment in 1941. (It will not amend this in the case of referrals by the president before a bill is signed, presumably on the grounds that as such a law cannot after be challenged on constitutional grounds, diverging or dissenting judgments would not be beneficial.)
I will be voting Yes this Friday to abolish the Seanad (the Thirty-second Amendment of the Constitution Bill). I have tried to encapsulate across different platforms the various reasons I have for doing so over the course of this campaign, over different platforms. In short, in these closing days, I hold that in a country like Ireland, without clear and sharp cultural or geographical divisions, we should have a single parliamentary chamber composed of representatives elected by us to pass laws on our behalf. This is something I first considered around ten years ago, and since then it had always seemed like a common sense proposal. We hear of many ideas for its reform, but that casts it as a house in search of a purpose. What reforms are proposed are ones that should be delivered for the Dáil, as our house of representatives. And even though I don’t believe political reform should stop here, I think it is a worthy reform in itself, to remove a house elected by a privileged section of society in a proportion of university graduates, of senators I’d barely recognise elected by Oireachtas members and councillors, and 11 who may or may be not be decent senators depending on the whim and needs of the Taoiseach.
I was delighted when Enda Kenny announced this policy soon in 2009, not long after I joined Fine Gael, and that he stuck with this commitment through the election campaign and into government. I would not have had the primary focus on cost that we saw from Fine Gael posters, but I think we have had a broad debate. Whatever the result on Friday, at least the people will have had their say.
On the Future Matters blog, Rachel Mathews-McKay wrote in defence of the Seanad under the headline, ‘The Seanad has stood with our LGBT Community’. It is true that two of the most well known senators, Mary Robinson and David Norris, played crucial roles in advancing equality for gay people in Ireland. But should this lead us then to credit the institution of the Seanad for this progress and for it to be retained because of this legacy? Does my activism on gay rights conflict with my enthusiasm for abolition of the Seanad? Let’s examine the history in greater detail.
The Campaign for Homosexual Law Reform began in 1975 with David Norris, a member of the English Department at Trinity College Dublin, as it most prominent member. Its legal advisor was Mary McAleese, who was succeeded in that role by Mary Robinson in 1979. The 1885 law which had convicted Oscar Wilde, and which had been largely repealed in England and Wales in 1967, was still in effect in Ireland.
Mary Robinson had been elected as one of the three University of Dublin senators in 1969 (continuing there till 1989), but it was through her actions as a legal counsel that she was most successful in bringing about social change, whether on this question or on many others. When David Norris sued the state on the claim that criminalisation of homosexuality was unconstitutional, Robinson acted as his barrister. In Norris v. AG, the High Court ruled against him in 1980; on appeal to the Supreme Court, they too ruled against him in 1983.
They filed in the European Court of Human Rights in Strasbourg. Ireland was a signatory of the European Convention on Human Rights in 1947, and Northern Ireland resident Jeffrey Dudgeon had successfully sued there in 1981 in Dudgeon v. United Kingdom to secure the repeal of the law, which still then applied in Northern Ireland. The law was changed for Northern Ireland in 1982 (a separate law had been passed to apply to Scotland in 1980).
In 1987, David Norris was elected as one of the three University of Dublin senators, in large part in recognition of his work in this campaign.
On 20 November 1957, Independent TD Dr Noël Browne proposed a Private Members’ Motion, “That Dáil Éireann is of the opinion that Seanad Éireann as it is at present constituted should be abolished.” The motion was seconded by Independent TD Jack McQuillan (Browne and McQuillan were to found the National Progressive Democrats in 1958).
Browne continued on 27 November. On 4 December, Taoiseach Éamon de Valera instead proposed a commission to examine the method of election for senators, and Noël Browne reluctantly accepted this compromise, saying “we shall accept that position as making the best of a bad job and wish the committee to be established every success”. (Credit to John O’Dowd of UCD’s School of Law for initially pointing me towards de Valera’s response)
Browne did serve as a Senator for the University of Dublin from 1973 to 1977, as many do between time in the Dáil when they lose their seat, but bar taking account for inflation, much of his 1957 speech stands as true in today’s debate. I have reproduced this speech in full.
That Dáil Éireann is of the opinion that Seanad Éireann as it is at present constituted should be abolished.
In moving this motion it is necessary to go over some of the history associated with the formation of the Seanad and its subsequent career. This is the second time that a motion of this nature was moved in this House. On the previous occasion, however, the motion simply asked for the abolition of the Seanad as it stood. It was moved by the present Taoiseach, Deputy de Valera, and behind him he had the backing of an effective majority, with which, there was no doubt, he intended to implement his will.
I do not intend to go into the reasons why the then Taoiseach, Deputy de Valera, insisted on the removal or abolition of the Seanad but I shall draw to a very considerable extent on many of the very cogent, telling and compelling arguments which he used at that time in order to try to persuade the House to agree that a Seanad as such or, indeed, any Second Chamber at all was neither desirable nor necessary in a democratic society. As two Independents, it is quite clear that we cannot depend on the great overwhelming majority of a Party. Possibly because of that it should be possible to get a more reasoned argument from both sides of the House, to have the motion considered in a non-Party way, and, if possible, allow the Deputies to express their viewpoint independent of the Party Whip.
To those who feel that the Seanad is serving a useful purpose as it is and do not want to have it changed, I would very much like if they would put forward their arguments and try to justify their belief. I should not like to treat the House in the positively boisterous way in which the Taoiseach, Deputy de Valera, treated it away back in 1934, when he put the onus entirely upon the Opposition to prove that the Seanad was required. He said in Volume 52, column 1809, of the Dáil Debates:—
I am particularly motivated in the upcoming referendum on the abolition of the Seanad as I see it as a matter of democratic principles. It is something I have held for many years, and I was delighted when Enda Kenny announced his personal support for the reform.
The purpose of a legislature in a modern democracy is to elect representatives held accountable to make laws on behalf of the people. And in parliamentary democracies, as exist in most European countries, these elections are also when we vote on the makeup of the government. At each general election, the people decide collectively on where the balance of policy should be, whether a government deserves to be re-elected, or whether we should take the chance to kick the rascals out.
The direct involvement of the people in their governance through the electoral was a hard-fought struggle, and one which over time a growing number of people across the world have been able to enjoy.
All stages of this process, from parliamentary processes to the preferences of voters, should be subject to constant scrutiny and eternal vigilance. A recent book by Anthony O’Halloran, The Dáil in the 21st Century (2010) provides a good comparative analysis of this, drawing on international comparisons and developing theories of political science. Reading it with weeks before this poll, I couldn’t but notice the dog in the night-time, that he wrote such a thorough analysis of the democratic purpose, strengths, deficiencies and potential of the Dáil, and the importance of a vibrant, republican civil society, without any need to address a role for the Seanad.
Within the European Union, there is close to an even divide between unicameral and bicameral parliamentary systems, with a small bias of fifteen to thirteen in favour of a single house. But there is a clear population differences between these countries: the 15 with one house of parliament have an average population of 5 million, where the 13 with two houses of parliament have an average population of 33 million.
In some countries, the second house of parliament is a clear legacy of the role given to aristocratic influence, as we are familiar with from the House of Lords. In others, it is because of the importance given to federal structures, as in Austria, Germany or the United States.
Second houses do have a basis in countries with a divide that is too important to be left to a simple majority of representatives. This was a good reason for the Constitution of the Irish Free State to include a Seanad, where there had been an understanding that William T. Cosgrave would appoint a large number from outside the Roman Catholic population. Its first Cathaoirleach was Lord Glenavy, who had served as Lord Chancellor of Ireland from 1918 to 1921. There could be a good similar reasons to have a second chamber in the case of a united Ireland, but there would be other substantial constitutional amendment in such instance.
A second house, then, frustrates the primary house of representatives. It is all the worse in the case of the Seanad given how its members are chosen: 3 elected by scholars and graduates of Trinity College, Dublin; 3 elected by graduates of the four universities of the National University of Ireland; 43 elected across five panels, where councillors and TDs have a vote in each panel and invariably select fellow party members, and often those who recently failed to be elected in Dáil elections; and 11 nominated by An Taoiseach.
Not all of this is set in stone. Senators Katherine Zappone and Feargal Quinn proposed the Seanad Bill earlier this year, which would give a vote to all Irish citizens. On the face of it, it seems like a democratic improvement. But I think it could be worse than the status quo, as it retains the panels of Administration, Agriculture, Education, Labour and Industry, and the concept of distinct parliamentary representation for university graduates. While the current system entrenches the influence of political parties, a national election based on candidates from these panels would entrench the role of sectoral vested interests.
There is a great democratic potential in the Dáil. Most of those campaigning to retain the Seanad say we should vote No and reform the Seanad.
I say we should vote Yes: abolish the Seanad, and then focus all further desire for political reform in the Dáil, as the democratically elected house of the people.
Dublin Bus and its employees seem have to have come to a truce, if not a settlement, to their dispute. Others elsewhere have gone into detail on the current financial position of Dublin Buss on relative pay of its drivers and a Mazars Report on Ireland’s State-Owned Bus Companies of two years lead to believe that the Labour Court proposals which focused on allowances were reasonable in the context of both European comparisons and situations elsewhere in the public service.
But that is not what stood for me. While Leo Varadkar was criticized for not intervening, but on the News at One, he stayed firm that this was a matter between the Labour Court, the management of Dublin Bus, and the two unions, to return to discussions.
This is as is should be, and will hopefully set a precedent. The political process should, with rare exception, respect the role of institutions such as the Labour Court as an independent arbiter in such industrial disputes.
With US Supreme Court upholding two lower court rulings, Edie Windsor has been successful in her challenge to Section 2 of the Defense of Marriage Act, which defined marriage at a federal level as between a man and a woman.
This means that gay couples who marry in the states of Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington, and in the District of Columbia.
In the case to uphold Proposition 8, Hollingsworth v. Perry, which began as Perry v. Schwarzenegger, the Supreme Court ruled that Dennis Hollingsworth did not have legal standing to challenge the District Court ruling. He heads Protect Marriage, the group that pushed to get Proposition 8 on the ballot, but the Court ruled that this did not give him a right to challenge what was a state law, and therefore within the remit of the governor and attorney-general of California, Gerry Brown and Kamala Harris, to challenge the lower court rulings, and both of them support agree that Proposition 8 was unconstitutional.
This decision is legally sound, and has precedent in Arizonans for Official English v. Arizona. It is almost surprising then that Court granted cert to the case, and we’ll never know which of the four decided to do so.
So gay couples will soon be able to marry again in California, having been able to do so during a few months in 2008.
I was particularly pleased that Justice Anthony Kennedy wrote his opinion based on equal protection, rather than states’ rights. This is the third major gay rights ruling of his, afterRomer v. Evans in 1996, which overturned exemptions of gay people from discrimination laws, and Lawrence and Garner v. Texas ten years ago today in 2003, which overturned remaining anti-sodomy laws. All in all, a strong ally for gay people on the bench. Will he have a chance to go one further and extend marriage for gay and lesbian couples nationwide?
We will have to wait to get a challenge from a couple in a state whose governor and attorney-general will continue to defend such a prohibition all the way to the supreme court, and preferably in a state where there is a reasonable prospect of a district or circuit court ruling in favour of equal marriage.
Let’s be honest: The gay marriage debate is nearly over.
In the Los Angeles Times last week, David Blankenhorn, President of the Institute of American Values, opened with these words to write again about his personal journey. He was one of the witnesses who spoke in defence of Proposition 8 in its original court hearing in 2010, and a long-term leader of those who were against. Between his institute and where he places his emphasis in his arguments, such as on family stability and the effect of absent fathers, he brings his namesake to mind, David Quinn, Director of the Iona Institute.
Yet last year, David Blankenhorn wrote in the New York Times, ‘How My View on Gay Marriage Changed’. He did not depart from his core understanding of marriage as ‘the planet’s only institution whose core purpose is to unite the biological, social and legal components of parenthood into one lasting bond’. But the debate on gay marriage did not pan out as he initially expected, nor did it have the effect of strengthening an understanding of heterosexual marriage. In that context, comity matters, he said,
Sticking to one’s position no matter what can be a virtue. But bending the knee a bit, in the name of comity, is not always the same as weakness. As I look at what our society needs most today, I have no stomach for what we often too glibly call “culture wars.” Especially on this issue, I’m more interested in conciliation than in further fighting.
As he came to see it, maintaining his opposition did not help the conversation he believed was most important about marriage, and began to realise that these discussions can perhaps best take place while accepting that gay couples are living together and raising children,
It is unusual that a country of our population has two houses. The fifteen EU countries (including Croatia joining next month) with one chamber have an average population of 5 million; by contrast, the thirteen EU countries with two chambers have an average population of 33 million. I have not done a full statistical analysis, but population looks like one of the most likely predictors of whether a country’s parliament will have one or two chambers.
Of course, this is not reason enough in itself to support abolition of our Seanad, but it is a worthy reminder that the absence of a second chamber would not make Ireland unusual in comparative terms.
The next question is whether the current Seanad can be defended. A house of parliament, being a body that legislates on our behalf, should maintain democratic legitimacy and accountability; as far as is reasonable, it should be possible for voters to choose their representatives and then to remove them after a period of years. While this happens in the Dáil, as seen most clearly in the last general election, it is quite different in the Seanad. Forty-three are elected by elected politicians, six by a proportion of university graduates, and eleven appointed by An Taoiseach.
I believe this system in large entrenches governance by political insiders. Each new Seanad has had members who were defeated at the recent Dáil, whether among the 43 elected by Oireachtas member and councillors, or those appointed by An Taoiseach. Someone who was not successful in a general election should return to civil society, and perhaps try again at the next election, rather than receive a separate mandate to legislate from their party peers. And while I would commend Enda Kenny on the diversity of experience of his eleven nominees, this cannot be guaranteed on. These nominees are still among those who are politically connected, and broadly favourable to the government parties, even if most of them have genuinely Independent within the house.
Though a beneficiary of the graduate franchise, and was pleased to cast a vote for Jeffrey Dudgeon standing for the University of Dublin seats in 2011, I don’t see a defence of it. Nor would I consider extending it to graduates of other colleges and universities as an improvement, as it would only entrench an idea that someone is more qualified as a citizen with different levels of education.
Each of these aspects could be reformed. But I don’t realistically expect a government who has lost a referendum on the Seanad to spend much time afterwards drafting legislation to reform it; nor would I expect Fianna Fáil in government to expend any similar time on legislation, while they as much as any others have benefited politically from the current set up. Reform might sound nice, but it brings to mind the mice calling for a bell on the cat, for all that it is likely to happen.
So the vote will be whether or not to vote to abolish the Seanad as we know it, with a number of compensating measures. Reform is not in any real sense on the table.
Nor do I think I would much like to see the reforms proposed by Democracy Matters, which would give all citizens a vote in one of the vocational panels (Administrative; Agricultural; Cultural and Educational; Industrial and Commercial; Labour). I think our country has divisions enough between different sectors without these being formalised in our legislative structures.
We hear of the many admirable and outstanding current and previous Senators. But the abolition of the Seanad would not remove their voice from Irish society. I believe that is a role for the press, the universities and a vibrant civil society to play, to engage with the democratic process, while not having a direct part in it as of right.
I await to see the Amendment Bill this week, and the strength of the proposal will affect how actively I will campaign in the autumn, but as of now, I would need a very strong reason to support retention of our second house.