Author Archive

Ferriter has before exhibited many of the faults he found with Coogan’s work

24 November, 2015 Leave a comment

Diarmuid Ferriter may be right about everything he has to criticise Tim Pat Coogan for, but should Ferriter be the one to say it? Too many of his comments brought to mind Ferriter’s own 2004 book, “The Transformation of Ireland, 1900–2000”. This was a book badly in need of an editor, or at least another set of eyes before it launched itself on the Christmas market. At several points he makes reference to people by their profession or position but without identifying them, as if he had written an incomplete note in his research, “a leading Irish MEP suggested racism was endemic” (who? I’d love to know!), “In January 1980, Latin America’s leading Catholic theologian suggested” (what was their name?). Other times he quotes someone without giving an endnote citation, such as a line proposed by Tom Johnson, omitted from the final draft of the Democratic Programme.

At various points, he uses inaccurate descriptions for the name of the state, “Irish Republic”, “Southern Ireland”, at times when it was not appropriate to do so, or the “Free State” of a statistic in 1944. He inaccurately describes the substantive question in the 1992 abortion referendum. He mentions incidents more than once (the abolition of the industrial school system in Britain decades ahead of its abolition in Ireland; Magill’s Supreme Court victory in the prostution story); on other occasions he presents his chronology through the book in a confusing manner (writing about the resignation of Ó Dálaigh, and then the formation of the Cosgrave government; discussing Carson’s position as a Dubliner working for Ulster Unionists when discussing the formation of Northern Ireland, without any prior mention when discussing 1913; writing about talks in 1986 with the IRA two pages before talking about the hunger strikes; discussing how de Valera drafted a new Constitution without mentioning the prior deconstruction of each significant element of the Irish Free State up to 1937).

He criticised Tim Pat Coogan for inaccuracies in his dates. Yet Ferriter gives Article 44 rather than Article 41 as including a section on the life of woman in the home; he describes the Fianna Fáil as 1992-95, where in fact it was 1993-94; he gave the Progressive Democrat seat total in 1987 as 15, where in fact it was 14. He writes that university representation in the Dáil continued until 1934, where it continued up to 1937 (after an amendment in 1936). He talks of the seaside town of Bray in County Dublin, rather than County Wicklow. He describes Jack Lynch as the first Taoiseach with no Civil War baggage, without acknowledging that John A. Costello was chosen in 1948 for that reason (Lynch was the first FF Taoiseach was had not been involved in the Civil War).

There are points of lacking in clarity or precision, like referring to Holles Street, rather than calling it the National Maternity Hospital; writing in 2004, he mentions of the PDs in government from 1989-92 and 1997-2002; at one point, it seems like he’s referring to Costello as leader of Fine Gael. On what happened in Dublin at the end of the Second World, he writes, “Trinity students displayed the flags of the Allies, to which nationalist students, including future Taoiseach Charlie Haughey, responded by burning the Union Jack”; someone reading that could be forgiven for thinking Haughey went to Trinity. His discussion of the First Dáil would have been the perfect time to explain what a TD was; instead, we find it in parenthesis several pages later as “James Collins, a member of the Abbeyfeale IRA and future TD (member of parliament)”. Or even include it in a key to terms. It just looks out of place randomly there.

Some obvious points of context are lacking: for example, mentioning Mary Robinson as a presidential candidate simply as “a liberal academic lawyer from Trinity College”, without specifying any of the causes she was involved in, or that she had a career in the Seanad, or that she had left Labour in 1985, or anything else. He writes that after 1977, the electorate rejected single-party government for the rest of the century; though there were no further single-party majorities, it ignores Haughey in 1982 and 1987-89. He mentions that the 1982-87 government spent time on cultural questions like abortion and divorce, but without mentioning that there were any referendums, let alone what the result of them was. He mentions the Anglo-Irish Agreement parenthetically, while discussing the relationship between Dublin and nationalists, without explaining what it was, who signed it, who opposed it, what led to it. He talks of the response to the hunger strikes and the success of Sinn Féin in the 1980s without mentioning their change of leadership and policy on abstention.

Aside from this, there are structural problems with the book. He divides the century at decade points too rigidly at times, so that for example the discussion of the outbreak of the Troubles in the 1960s is set apart from the rest of the events that follow from it. Within each chapter, the length of any section seems to be dictated more what he can group with an amusing quotation.

There are sections of the book that read like a collection of quotations from other historians and analysts. Again and again we have lines like, “as pointed out be Laffan…”, “In the words of sports historian Paul Rouse…”, “Colm Tóibín asserted…”, “Similarly, Fintan O’Toole pointed out in his survey of Ireland…”, “Tom Garvin maintained that…”, “His alternative to the Treaty was, maintained Joe Lee…”. The occasional intext reference to other historians is fair enough, but we read a text to read the author’s interpretation of events, not see how much he likes quotations from Laffan, Lee or Jackson. He even does this doubly so once: “Michael Gallagher quoted David Thornley…”. Were it simply to survey the existing research before presenting his own thesis, it would be fair enough. But such lines are peppered throughout the text, often without any separate analysis from Ferriter.

And a few pages of an overarching conclusion would be good, to justify the title, to explain how and why he believes Ireland was indeed transformed.

Anyway, these are just a few points I noted on the margin of book at various points when I first read it, such that I thought it a bit rich for Ferriter to find the faults he did with Coogan’s book. Especially so as Coogan is a popular historian; though Ferriter writes for a broad audience, he is an academic historian, and standards of referencing and accuracy apply all the more.

Categories: General

‘The Europe Dilemma’, by Roger Liddle

2 October, 2015 Leave a comment

europedilemmaIn September 2016, the referendum on United Kingdom membership of the European Union is likely to be held. With less than twelve months to go, The Europe Dilemma: Britain and the Drama of EU Integration by Roger Liddle, published in 2014, is valuable reading. He provides insight into how Britain’s relationship with European institutions has affected both parties. At the date of its publication, the travails of the Conservative Party was Liddle’s main focus in his conclusion; while they are still more likely to suffer internally from divisions on Europe, the debate within the Labour Party has reignited since the election of Jeremy Corbyn as leader, notwithstanding his recent commitment to remaining.

Lord Liddle is an unashamed europhile, whose major regret is that Tony Blair (whom he advised on European affiars) adopted an obsequiousness towards the Murdoch press that led to the United Kingdom’s non-participation in the euro single currency. In his analysis, living within the euro would have forced a tighter fiscal policy on Britain, and slowed the decline of British manufacturing.

Liddle’s case is that Britain’s leaders from Macmillan on let their country down by not participating as they could have in the European project. He argues that Britain paid a continuing price for its late arrival. Not only were they perceived with wariness by the original members, but they lost the opportunity to shape the Common Agricultural Policy, which would later become a source of grievance for the British. In Liddle’s view, the same could be said of their approach to the euro, where Britain lost an opportunity to steer it in their favour. Rather than viewing involvement in the European Union as an important venture in global politics, in positive terms, British politicians consistently talk of standing up for national interests. Liddle analyses the attitudes of the two major parties towards Europe from the 1960s to the time of his writing, both in government and in opposition, with particular spotlights on the 1975 referendum held by the Labour government on whether to remain within the EEC, and the failure of the United Kingdom to join the single currency.

David Cameron called the referendum in response to pressure from within his own party, from UKIP outside, and from the eurosceptic press. If Cameron is a moderate on Europe, Blair was an enthusiast. Yet he found himself pushed into taking stances he could not have desired. He did not stand up to those who were less committed, many of whom were part of the New Labour project. For example, Foreign Secretary Jack Straw insisted that there would have be a referendum on the 2004 Constitutional Treaty, which Blair initially resisted, it being less important in substance than either the Single European Act or the Maastricht Treaty. This public pledge led to the referendums in France and the Netherlands, which scuppered the Treaty (though it was substantially reformulated in the Lisbon Treaty).

Liddle also highlights Blair’s weakness against Brown, allowing him to set the terms for any entry into the single currency. It is clear that Blair had begun to have doubts about Brown as a successor, yet was unwilling to confront him in any serious way. Liddle marks out as the great conundrum of Blair’s premiership, that “if Brown was so unfit to be prime minister, why did our hero Blair allow a situation in which that became inevitable”. If instead of simply demoting Robin Cook from the Foreign Office in 2001, Blair had switched his portfolio with Brown’s, to have a more committed europhile in the exchequer, he might have achieved the legacy he intended of bringing Britain into the euro.

However, Blair receives praise for his commitment to enlargement, and for waiving the 7-year derogation on the free movement of labour (which the Irish government under Bertie Ahern did too, to its credit). Unlike the Labour Party that fought the 2015 election, Blair continues to affirm the merits of this policy. Liddle writes that is “depressing that the entire British political class has run away from explaining the benefits of eastern migration to economy and society”.

Liddle is naturally more critical still of Cameron, in decisions such as Britain’s opt-out of the Stability Treaty, of which he writes that it “did wonders for his rating in the party and the country, but at the price of severe damage to national interests”. His Bloomberg speech, in which he announced his intentions to renegotiate Britain’s membership of the EU, paradoxically couched Britain’s in more positive terms than anything from a Tory leader since Major in Bonn in 1990. Cameron now finds himself looking for a symbolic gesture to present to the British public in a referendum, just as Harold Wilson found presenting a change in New Zealand milk quotas as a significant renegotiation. I would also speculate that Cameron is privately more open to immigration than his push to drive down numbers entering Britain would suggest.

Cameron should not believe that by putting this referendum, which he hopes and expects to win, that he will settle the European question for a generation, or give him rest from the anti-EU sections of his party. Such are the lessons of history from the Labour Party; eight years after holding a referendum in which two-thirds of voters supported remaining in the EEC, the party stood in the 1983 general election on a platform of withdrawal, and had lost many of its more pro-European members to the newly formed Social Democratic Party (later to join with the Liberal Party to become the Liberal Democrats). It took many years for the Labour Party to resolve these internal battles in the New Labour project.

The New Stateman asked this week, Can anything sink the triumphant Conservatives? With Labour out in Scotland, thanks to the SNP, and undergoing an identity crisis since Corbyn’s election (watch Shadow Justice Secretary Lord Falconer outline the differences he holds with his party leader, and these tensions are there across the shadow cabinet), it might seem like the Conservatives are indeed in for a few years of plain sailing. But if anything can put them off course, it may be this referendum, and the divisions within the party, whatever the results.

Do check out Liddle’s book over the course of this debate!

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…


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