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 The 1885 law which had convicted Oscar Wilde, and which had been largely repealed in England and Wales in 1967, was still in effect in Ireland.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.
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,
We try in political debate to maintain a level of goodwill between those who hold different but legitimate points of view. Sometimes it is easy to get caught up in the back and forth of debate, it is important to remind ourselves that usually all sides do mean well.
But while that might be true of contests between parties in elections, or of a referendum campaign such as on a European Union Treaty, there are opinions on some issues that must try our patience, when it is our very lives and personal relationships and the value of someone as a parent that is questioned. And from now on those in positions of influence who carelessly condemn those whose sexual orientation or gender identity places them in minority are going to be called on this. Two days before the convention convened, Una Mullaly wrote in The Irish Times in response to her friend Buzz O’Neill who was beaten up on George’s Street for being gay. She challenged the idea of balance in the media, the way in which the media feels that because it is a matter of constitutional debate, an advocate of equality must be matched against an opponent,
The main problem with how the Irish media frames the debate is around a skewed view of what ‘balance’ is. ‘Middle Ireland’, the ‘silent majority’, the ‘mainstream’, gay people are told, are not ready for something so drastic as equality. I don’t know about you, but I never actually hear that middle ground. What I hear again and again is yet another articulate gay person trying to hold their temper while they are subjected to ignorant and juvenile arguments. And I hear an opposing view, generally one from the far out end of Catholicism, blustering about children’s rights (which Civil Partnership denies, thank you very much), and trying desperately to fight against equality with arguments based on their own personal belief systems or grievances. I don’t hear middle Ireland.
Then we had the Convention itself, a great day with 79 votes to 18 in favour of amending the constitution to read that the state shall enact laws providing for marriage for same-sex couples. Though the result shouldn’t have been surprising as it reflected most of the recent opinion polls on this question, it was more meaningful for having followed a weekend of deliberation and considered discussion. After that, the response of some of the leading opponents was not just to say that the only poll that matters is the one on the day, but to criticise the process they had taken part in, as seen first with Sen. Rónán Mullen tweeting less than an hour after the result was announced:
Then David Quinn blogged about the result, ‘Ireland a step closer to rejecting the value of motherhood and fatherhood’. What stood out for me here was his criticism of Frances Fitzgerald, ‘One of those politicians was Children’s Minister, Frances Fitzgerald. It is truly an astonishing turn of events when a minister for children is willing to sign away a child’s right to be raised by a mother and a father.’ He is not simply accepting her views as an alternative conclusion, but one that is obviously anti-child. Just as his fellow Iona Institute patron Breda O’Brien was to do days later, when she wrote in Saturday’s Irish Times, he ignores entirely the contributions on the Saturday of the convention, which he was there to witness, of the real life of children headed by same-sex couples. Watch Conor Prendergast and Clare O’Connell, talking about their family lives, both raised by lesbian couples (at 23:30):
or watch Colm O’Gorman, talking the conventional life he leads, raising two children, with the man he has married (at 38.30):
David Quinn talks about burden of proof. I would argue that the burden of proof is on those who claim this country should not allow these families to be recognised as married. What possible reason could there be for denying this in law?
Iona and their claims of research
This is before we delve into the controversy of the research the Iona Institute claimed on their side. As has been well documented, their submission to the convention was misleading as they quoted a single piece of research written in 2002, from Child Trends, ‘Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do about It?’. The section from the Iona Institute submission read,
The social sciences confirm what every known society in the world has known instinctively, namely that marriage between a man and a woman is uniquely beneficial to society and to children. This is the case even though some individual marriages may be dysfunctional and harmful to children (as can any other type of family).
One of the most important child research organisations in the United States is Child Trends, which is centrist in its politics and ideological outlook.
It produced a paper in 2002 called ‘Marriage from a Child’s Perspective: How Does Family Structure Affect Children and What Can We Do About It?’
This summarises what the social sciences have to say about the matter (emphasis added).
The summary is as follows: “Research clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage…There is thus value in promoting strong, stable marriage between biological parents.” A great deal of additional material is available that attests to this fact.
A reasonable person reading the Iona Institute submission would assume that by the matter, the quoted study discussed same-sex parents. There is in fact no reference either to same-sex parents, or to adoption or assisted reproduction by heterosexual couples. It is a comparison between instances where parents are married on the one hand, and single parents and step-parents on the other. A very similar study from 2003 by Mary Parke for the Center for Law and Social Policy, ‘Are Married Parents Really Better for Children? What Research Says About the Effects of Family Structure on Child Well-Being’, explains such a conflation in its first endnote,
The reference to biological parents is to distinguish between biological/adoptive parents and step-parents. Most studies that include data on adoptive parents include them in the biological parent category. Adopted children have very similar outcomes to children raised by both biological parents.
The Iona Institute is not the first anti-equality group to claim the Child Trends research as an argument on their side. Earlier this year, the House Republicans cited it in their brief against repeal of the Defense of Marriage Act, and Child Trends intervened there. Tired of this constant quotation out of context, they added a statement to the online version of the study, as can be seen in the link above,
Note: This Child Trends brief summarizes research conducted in 2002, when neither same-sex parents nor adoptive parents were identified in large national surveys. Therefore, no conclusions can be drawn from this research about the wellbeing of children raised by same-sex parents or adoptive parents.
I wrote to Child Trends to let them know that their research was cited by both the Iona Institute and the Irish Catholic Bishops Conference, sending links to their submissions, after reading these, Child Trends felt it was appropriate to write a formal letter to the Convention. David Norris raised this in the Seanad,
After a lengthy Twitter exchange, in which I engaged myself, beginning with the persistent Paul Moloney:
David Quinn attempted to backtrack on what he meant by the citation, to claim that the study showed there was not enough research on the question of same-sex parenting. It doesn’t, because it was not the subject in question. Or at least, no more than citing a study of Afghanistan since 2001 shows that there is not enough research on Iraq since 2003. There is plenty of research on this question, as documented by several professional medical, psychological and sociological associations, none of which indicates any reason for concern about the implications of same-sex parents. It just happens that for whatever reason, it is not a question Child Trends have ever studied. What is relevant is that it was after reading the submissions that Child Trends felt their work was misrepresented, and felt it incumbent on them to write to the convention. This has also been well documented and commented on blogs Geoff’s Shorts, Bock the Robber, in Skeptic Ink by Humanisticus, and in Eile by David Gormley. All worth reading if you have the time.
‘Sick and tired…’
How the Iona Institute misrepresented research is something of a moot point, after the convention voted clearly in favour of equal marriage, and by a somewhat stronger margin on 81 to 12 in favour of legislation to account for same-sex parenting. But it is indicative of their tactics and methods, which will be reformed come the campaign. Though they have defended its use in recent weeks, I’d be very surprised to see them quote the Child Trends research come the referendum campaign. But we’re not putting up with it any more. There has been a clear expression from different commentators to call things as they are. We had Colm O’Gorman, the day after the Convention,
You know what? I'm getting sick and tired of the expectation that we must all be tolerant of gross bigotry and intolerance.—
Colm O'Gorman (@Colmogorman) April 15, 2013
Then Colette Browne wrote in the Irish Examiner, ‘Legislating for same-sex marriage will reflect changing face of families’,
THE insidious subtext of the argument against same-sex marriage is that children, currently being raised by gay and lesbian couples, are harmed by the experience. …
The argument against marriage equality today — that straight marriages will somehow be devalued if the constitutional definition of the institution is changed — is just as nonsensical. The right to marry one’s partner should be not be determined by race or creed or sexual orientation but is a basic human right that should be offered to every citizen.
Legislating for same-sex marriage, contrary to hyperbolic claims from some quarters, will not consign the role of mothers and fathers to a PC scrapheap, but will merely reflect the changing face of families in the 21st century.
And we had Carol Hunt in the Sunday Independent, ‘You’re not a bigot for refusing to accept intolerance’, talking about the process of Enlightenment,
Slavery as practised in the 18 and 19th Centuries would be anathema to us today, yet banning it was considered radical, dangerous and immoral when first agitated for. Natural law seemingly had decreed that black people were lesser beings than whites. Later this changed to equal but different.
Similarly women were denied the vote because it was argued that they were rationally inferior. And practising homosexuals were charged as criminals. Yet today, as part of our emancipatory journey, the majority in Ireland support same sex marriage. This is indeed moral progress.
We are now moving to a situation where the view that gay couples should be denied the opportunity to marry just as anyone else is being treated closer to how denying women the vote was in the 1920s. We will call prejudice what it is, disentangle the obfuscations and evasions of the opposition. This is not likely to be a pleasant campaign. But we are ready for it. And we are going to win.
It depends on two cases the Supreme Court is hearing this week, and will probably rule on late in June. On Tuesday, they will hear Hollingsworth v. Perry, and on Wednesday they will hear United States v. Windsor.
Windsor and DOMA
Edie Windsor is challenging the Defense of Marriage Act (DOMA), specifically Section 3 which reads,
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
This was passed by the House by 342 to 67, by the Senate by 85 to 14 and was signed into law by President Bill Clinton on 21 September, 1996.
The law was drafted by Georgia Republican Congressman Bob Barr in response to a ruling of the Supreme Court of Hawaii striking down a prohibition on same-sex marriage, based on the equality provisions of the Hawaii state constitution (subsequently overturned by Hawaiian voters). DOMA allowed states to provide for same-sex marriage, but this would not recognised by either the other states or by the federal government. This was several years before Massachusetts became the first state to permanently allow same-sex couples to marry in 2004.
Edith Windsor and Thea Spyer, both residents of New York, were engaged in 1965, and finally married in 2007 in Toronto, Canada. Spyer died in 2009, leaving her estate to her wife. This was before New York performed same-sex marriages, but they recognised marriages performed elsewhere. However, Windsor received a federal estate tax bill of $363,000 because the federal government did not recognise their marriage. As Windsor put it, ‘If Thea was Theo, I would not have to pay those taxes’.
With attorney Roberta Kaplan, Windsor filed in the federal courts. In February 2011, US Attorney-General Eric Holder announced that his department would not defend the law. Paul Clement, who served as Solicitor-General for Bush 2004–08, sought to defend it on behalf of the Republican-dominated Bipartisan Legal Advisory Group (BLAG), and Holder agreed to facilitate this.
In June 2012, Judge Barbara Jones of the United States District Court for the Southern District of New York ruled in favour of Edie Windsor. She based this on the equal protection clause of the Fifth Amendment,
No person shall … be deprived of life, liberty, or property, without due process of law.
Judge Jones further noted that DOMA could not pass even the standard of review of having a rational basis, the most basic standard of scrutiny.
The government lodged an appeal, again to facilitate the defence from the BLAG, which was upheld by the United States Court of Appeals for the Second Circuit in October 2012. This was again appealed, and the United State Supreme Court agreed to hear it. There were many briefs filed on both sides, included one in favour of ruling DOMA unconstitutional by the US government. It will be heard this Wednesday.
Hollingsworth v. Perry
Two couples, Kristin Perry and Sandy Stier, Paul Katami and Jeff Zarrillo, are challenging Proposition 8, an amendment to the California Constitution, passed in November 2008 with 52% in favour, which added a new Section 7.5,
Only marriage between a man and a woman is valid or recognized in California.
The Proposition was proposed after the California Supreme Court ruled in May 2008 in favour of allowing same-sex couples to marry.
In May 2009, the American Foundation for Equal Rights filed in the federal courts against Proposition 8, representing two couples. Among the attorneys for the four plaintiffs, were two who faced off against each other in Bush v. Gore, the Supreme Court case that halted the recount of the Florida votes, and so confirmed the 2000 election for George W. Bush. Ted Olson had represented Bush, while David Boies had represented Al Gore. Ted Olson later served as Solicitor-General for Bush 2001–04, preceding Clement mentioned above.
Then California Attorney-General, Jerry Brown, declined to defend, as he believed the case that it was unconstitutional. Then Governor Arnold Schwarzenegger lodged a defence, though he did not participate, and the case preceded as Perry v. Schwarzenegger. The court recognised Dennis Hollingsworth of Protect Marriage, a proponent of Prop 8, as the defence.
The combination of an outstanding legal team on behalf of the plaintiffs, and a very weak defence, has made the transcript of the hearing legendary among advocates for equal marriage, and highlights were reconstructed by screenwriter Dustin Lance Black:
In August 2010, Judge Vaughn Walker ruled for the United States District Court for the Northern District of California, giving a sweeping judgment in favour of the plaintiffs, ruling Proposition 8 unconstitutional. He found a constitutional right of gay couples to marry, citing both the due process and equal protection clauses of the Fourteenth Amendment,
No State … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
He also ruled that gay men and lesbians should be acknowledged as class of minority which merit a strict scrutiny in review of laws, and listed eighty findings of fact to assert his case.
This ruling was appealed, and in February 2012, the United States Court of Appeals for the Ninth Circuit upheld the unconstitutionality of Proposition 8, but on narrower grounds. Judge Reinhardt appealed on due process grounds to the manner in which the right to marry was removed from gay couples in California without a valid reason, rather than on whether a fundamental right to marry had been infringed.
Dennis Hollingsworth proceeded to appeal this ruling, and there were similarly many briefs on both sides, which drew more attention than those in Windsor, as the dealt with the more fundamental question of constitutionality of bans on gay couples marrying. The US government filed a brief in favour of ruling Prop 8 unconstitutional. It will be heard on Tuesday.
What should we expect?
Very few commentators expect that the rulings will not shift the balance of rights of gay couples in favour of equal marriage. The question is a matter of degree. Specifically on a repeal of Section 3 of DOMA, it is widely expected that Edie Windsor will be successful and that the US Federal Government will then recognise marriage between same-sex couples. This would not have an effect in the 41 states which do not currently perform same-sex marriages, but couples living in those states could marry elsewhere, and their marriages would e recognised at a state level.
The big question then is how far should be expect the court to rule of Proposition 8. Very few expect them to overturn both lower court rulings and find that Prop 8 was in fact constitutional. The extent of a favourable ruling could vary:
- they could rule that Dennis Hollingsworth does not have legal standing to appeal the case. This would deny his right to appeal the case, and leave the District Court ruling intact in California, but would have no effect outside of the state. Michael McConnell. In Diamond v. Charles, the Supreme Court ruled that an anti-abortion doctor did not have the right to defend his state’s law when the attorney-general declined to do so. Also, in 1998, the Supreme Court ruled in Arizonans for Official English v. Arizona that the supporters of a ballot imitative did not have standing to appeal.
- they could adopt the ruling of the Ninth Circuit and rule Prop 8 unconstitutional because it removed a right which gay couples had. This would have no immediate effect outside of California, though it would mean that a ballot imitative to forbid same-sex marriage in any of the nine states which allow it would be unconstitutional.
- they could adopt the reasoning of the brief filed by the US government (and so the official stance of the Obama administration as of February), that states may not be permitted to draw an artificial distinction between opposite-sex and same-sex couples through an institution as domestic partnership, as there could be no claim of a rational basis for denying marriage in those circumstances. This would also introduce equal marriage in Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.
- using the same case as Judge Walker in the District Court, they could find a constitutional right to marry for gay and lesbian couples, which would result in equal marriage in all fifty states.
Let’s hope for the last of these. It would end the debate once and for all. It is moving in one direction. Some of the older more conservative gay activists, such as Andrew Sullivan and Jonathan Rauch have stated a preference for a narrow ruling, fearing a backlash, and claiming that this is a better to win by convincing the hearts and minds of voters and legislatures, state by state, rather than a sweeping judgment now. That is very easy to say for them, both of them married, in Massachusetts and DC respectively. A sweeping ruling this year would remove it from the political sphere. There will be a backlash in some places, but one that die away sooner that one might think, and with better consequences for the gay people of Mississippi than waiting till 2024, as Nate Silver predicted they would have to (albeit on a projection that was a few years out of date). It will move on, much more than the judgment in Roe v. Wade on abortion was accepted.
Ultimately, I think they should rule in favour because I think it is a constitutional matter. Not one that might have been perceived till recently, but that was in the very nature of the Fourteenth Amendment even as it was drafted in 1866, that inequality as yet unperceived would be ruled against.
And I am hopeful. I don’t necessarily agree with Emily Bazelon, who worried about the Court taking this case, as this is not 1986 as far as visibility for gay people goes. The focus is on Justice Anthony Kennedy, who wrote the court’s opinion in both Romer v. Evans in 1996, which overturned a ballot initiative in Colorado declaring that gay and lesbians could not be protected by any city or county in the state, and Lawrence v. Texas in 2003, which overturned the anti-sodomy laws of 14 states. Both of these were 6–3 decisions. Kennedy is not a progressive justice; he has supported restrictions on abortion, wrote the decision in Citizens United and voted in the minority to overturn the Affordable Care Act. Yet he has good form on gay rights.
Two of those who voted against both Romer and Lawrence, Antonin Scalia and Clarence Thomas, are still on the court can be counted straightaway as votes to uphold Prop 8 and DOMA (the most David Boies would consider in a recent interview was 7–2). Four Justices are likely to go at least as far as Kennedy, two appointed by Clinton, Justice Stephen Breyer and Justice Ruth Bader Ginsburg, and two appointed by Obama, Justice Sonia Sotomayor and Justice Elena Kagan. That leaves the two appointed by Bush, Chief Justice John Roberts and Justice Samuel Alito.
I would not be surprised to see Roberts vote with the majority to strike down DOMA. He is very mindful of the long-term standing of the Court, and this may at least subconsciously play into his decision. In his early practice, he was involved in preparing the gay rights side in Romer. I have no reason to make such a call on Alito.
On a side note, a wily Republican strategist should quietly hope for a sweeping judgment. This would remove the question from the next electoral cycle, and mean that the 2016 candidates will be able to avoid it at a time when the electorate in general is moving towards accepting equal marriage at a far faster pace than their Republican primary base. They could give some response like, ‘It wasn’t the approach I had supported, but I accept the decision of the courts. What matters now is working with all those who wish to strengthen the institution of marriage in society’.
A sweeping judgment would also be the only one that would really have much effect from the international perspective. And it would have an effect on the debate here in Ireland, enhancing the case for equal marriage as a clear shift among those countries we have most in common with, if added to Britain and France this year too, and the eight other European countries that currently allow gay and lesbian couples to marry.
The US Supreme Court will hear Perry v. Hollingsworth this spring (as well as challenges to the Defense of Marriage Act, which most observers do expect to be overturned), a mere decade after decriminalising relations between men. This is a high stakes game in the battle for equal marriage for gay and lesbian couples. On the one hand, the Court could rule that the fundamental constitutional right to marry should be restricted by sex, protected by the equal protection clause of the Fourteenth Amendment, and immediately in force in all fifty US States. On the other, they could rule that this is a standard policy question to be decided by each state, whether by state courts, legislature or popular vote. Were they to rule in this way, the process would continue as it did in November, with a steady and growing number of states providing for equality, but leaving gay people in states like North Carolina waiting some time.
This court battle arose after California voted for Proposition 8 in November 2008, the same day they voted for Barack Obama for president. This amended the California constitution to define marriage as between a man and a woman. This overturned a state court ruling in favour of equal marriage earlier that year. The 10,000 couples who had married could stay married, but no more gay couples could.
In 2009, Ted Olson and David Boies were announced as the legal team who would challenge Proposition 8 against the US Constitution. They had faced off against each other in Bush v. Gore, but now combined in the fight for equality in the case filed as Perry v. Schwarzenegger, representing two women and two men who each wished to marry. They based their case on three key points:
- that the US Constitution protects a fundamental right to marriage;
- that being denied marriage negatively affects gay and lesbian couples and their families;
- and that allowing gay and lesbian couples to marry will in no way harm marriage for heterosexual couples
During the trial, both the lawyers defending Prop 8 and its chief dependent provided great moments that only bolstered the case of the plaintiffs. When asked what harm same-sex marriage would bring, the defence lawyer could only answer, “I don’t know”. David Blankenhorn, President of the Institute for American Values, admitted that the law would be more American on the day it allowed gay people to marry (he has since publicly declared that he now supports equal marriage).
In August 2010, the District Court ruled in favour of the plaintiffs, finding a fundamental right to marry, and striking down Prop 8. Its proponents challenged this to the Circuit Court, losing there. However, this ruling, in February 2012, was narrower, applying it only to the specific circumstances of California. They ruled that because Prop 8 removed a right that had existed for a number of months before November 2008, and without good cause, it could not stand. They did not rule on a constitutional right did marry, so the ruling did not apply to other states in the Ninth Circuit. The Prop 8 supporters appealed this ruling to the next stage, the Supreme Court.
Any sensible advocate of equal marriage would have hoped that the Supreme Court would not hear this appeal. Had they not, California would today be joining the states where gay couples can marry.
But sometimes it’s good to be bold. It could go roughly three ways. Worst case is the appeal is successful and Prop 8 is allowed to stand. They could side with the Ninth Circuit and rule in favour of the specific circumstances, without touching on the question of a fundamental right, leaving that for a future date.
But if the Justices have a sense of history, they may decide not to seen as the court who fudged this question. We could see another ruling on gay equality authored by Anthony Kennedy. He has a clear libertarian mindset, seen in the nature of his opposition to the Affordable Care Act last year. He wrote the majority opinion in Lawrence v. Texas in 2003, which removed statutes criminalising male homosexual relations, as well as a case on the mid 1990s striking down a ballot measure in Colorado which allowed discrimination based on sexuality.
With the great, clear and coherent case presented by Olson and Boies, we could see the end of the battle for marriage equality. The court could decide to just save a lot if people time and energy, in what might otherwise be dragged on for a decade more or so. And the very fact that this is considered a definite possibility, even by those who see it as the less likely outcome, shows in itself how far the debate has shifted.
Last night saw the re-election of the first US president to have declared their support for equal marriage for gays and lesbians while in office. During Barack Obama’s first time, he has had the best record of any president to date, overseeing the repeal of “Don’t Ask Don’t Tell”, the end of the ban on travel and immigration based on HIV status, allowing transgender people get passports with their current gender. As far as foreign policy goes, Secretary of State Hillary Clinton made very clear that the US would promote the rights of lesbian, gay, bisexual and transgender people across the world.
The clearest watershed for gay rights, though, were the votes on equal marriage. Maine, Maryland and Washington became the first places in the world to approve of equal marriage by popular vote. In all other places, whether other US states or eleven countries, the change was made only through the courts or the legislature. Thirty-three times before yesterday, in different US states, votes on marriage had gone against equality. Now we see that the popular mind-set is shifting. Voters now see our relationships as no different to those of any other couple who wish to marry. Voters in Minnesota also defeated a proposal to amend their state constitution to define marriage as between a man and a woman.
These votes sent a clear message to American reactionaries that the tide has turned. It will embolden those across the country seeking equality. Next step will be for the Supreme Court to rule on the offensively named Defense of Marriage Act, which Justice Ruth Bader Ginsburg has indicated will be considered soon, probably this spring. I think given the makeup of the court, it’s likely to be repealed, and marriages between same-sex couples in the eleven states which allow it will be recognized by the federal government. Meanwhile, the push state-by-state, through courts, legislature and polls will continue.
For us too in Ireland, these campaigns can serve as a model for us, as we’re likely to face a referendum on equal marriage in the coming years. Our countries are different, yet there would be still so much in common with such a campaign. We can look to Maine and compare a campaign that worked with one that didn’t.
Last night also saw the first openly gay Senator elected, with Tammy Baldwin for Wisconsin, who had served in the House since 1999. She beat former governor Tommy Thompson to the seat.
In the House, the long-serving Barney Frank retired this year. Frank served on the Massachusetts delegation since 1981, and in 1987 became the first openly gay member of Congress. Earlier this year, he became the first member of Congress to marry someone of their own sex.
Jared Polis, who has served for Colorado since 2009 achieved another first, who is raising a son, born last year, with his partner, another Congressional first for an LGBT member. David Cicilline was the first openly gay Mayor of a state capital, for Providence, Rhode Island, and served in Congress since 2011. Both were re-elected last night.
There were also some new LGBT members of the House. Mark Pocan succeeded to Tammy Baldwin’s old seat in Wisconsin. Sean Patrick Maloney won in New York and Mark Takano won in California. And while the race is still tight, Kyrsten Sinema in Arizona looks set to be the first openly bisexual member of Congress.
All the above are Democrats. One Republican I was hoping would be elected and take his name in that list was Richard Tisei in Massachusetts, but he wasn’t elected. He ran a good campaign, but it’s tough for a Republican to fare well in Massachusetts. The list of gay, lesbian or bisexual members is becoming numerous and closer to being proportionate, so that each one is less significant for that fact, and soon enough, we’ll stop bothering to list them off. But the milestone of a Republican openly gay on their election will be one to mark.
Moreover, the votes in the four states on marriage in particular will focus the minds of Republican leaders and strategists. Their accommodation to reality will be late, but is inevitable. This is of course but one of a number of issues where they will have to articulate views closer to the median voter to avoid being seen as dinosaurs, and losing winnable Senate seats, as occurred this year in part because of the comments on rape and abortion from candidates like Todd Akin, Richard Mourdock and Rick Berg.
The views of the public of equal marriage are shifting so quickly that by 2016, I can’t see the frontrunner of the Republican candidates going anywhere near a National Organization for Marriage pledge. I could see them answering a question, stating a preference for civil unions but acknowledging that different states are finding different approaches, something not too far from Obama in 2008. And by 2020, I could easily imagine it not being an issue at all for the Republican candidate to be on record in favour of equal marriage, if a Supreme Court ruling doesn’t recognize it as a right across the United States before then.
In any case, last night’s results were definitely quite a step forward from four years ago, when the fervour Obama’s election was somewhat dampened by California’s support of Proposition 8.
The Republican Party Platform remains as virulent as ever, if not stronger still, in its opposition to allowing gay or lesbian couples to marry. To give context, I have quoted these sections in full at the end of this piece.
The platform attacks the judiciary and the president for their actions, and affirms the party’s commitment to an amendment to the US Constitution which would define marriage as between a man and a woman, thereby overturning laws in six states which currently allow equal marriage. It also refers to social experimentation, a reference to the repeal of Don’t Ask Don’t Tell, allowing gay soldiers to serve openly. These sections were effectively written by Tony Perkins, president of the Family Research Council. The most the disappointed Log Cabin Republicans could secure was the line, “We embrace the principle that all Americans should be treated with respect and dignity”, which means little in the context of the previous passage.
Kris Kobach, Kansas Secretary of State and an advisor to Gov. Mitt Romney on immigration, defended these sections by comparing it to government regulation of behaviour like drugs and polygamy.
This is not just a party which is not yet on board, whose leaders are still evolving, where members have different points of view. It is one whose default position is organised opposition at every level to difference of opinion on the question. Gov. Mitt Romney, who in 1994 claimed to better than Ted Kennedy on gay rights, signed the pledge to support such a Federal Marriage Amendment from the National Organization for Marriage
And yet, in New York, New Hampshire and Washington, equal marriage exists in these states because of the support of certain Republican legislators. The party is not absolute either in its position. The Respect for Marriage Act, has one Republican sponsor, Ileana Ros-Lehtinen of Florida. And there are two groups of gay members of the Republican Party, the Log Cabin Republicans, founded in 1977, and GOProud, founded in 2009.
The Log Cabins put a much greater emphasis on equality for LGBT people than GOProud do. The former lists “Protecting LGBT families” and “Freedom to Marry”, where GOProud make no direct reference in their headline points in their ‘What We Believe’. The Log Cabins refused to endorse President George H. W. Bush in 1992 or President George W. Bush in 2004. They have yet to make an endorsement this year. They played a part in the repeal of Don’t Ask Don’t Tell, suing the US in a federal lawsuit.
GOProud could crudely be described as Tea Party response to the Log Cabins. They proven themselves much more likely to emphasise issues other than rights for gay people in their endorsements. In the primary for the California Senate in 2010, they endorsed Carly Fiorina, who had supported Proposition 8 banning same-sex marriage in the state, as against Tom Campbell, who had penned a piece calling for a No vote in that ballot, and who was promoted by the libertarian magazine Reason, so no fan of big government. They have already endorsed Mitt Romney.
I think the Republican Party is definitely better for having the Log Cabin Republicans within it. They serve as a touching point for the still small but growing number of prominent Republicans who are speaking out for equality, such as Vice President Dick Cheney, now out former RNC Chair Ken Mehlman, Colin Powell, Bush Solicitor-General Ted Olson, Mayor of San Diego Jerry Sanders. With the new group, Young Conservatives for the Freedom to Marry, they took out ads leading up to this week’s Republican National Convention, and they are adding to the conversation within the Republican Party. I’m not so sure I could say the same of the GOProud, who effectively send the message that while questions of marriage are worth talking about, taxes will always trump protections for lesbian, gay, bisexual or transgender people.
Republicans in favour of equality are definitely worth supporting. American Unity was formed earlier this year by a Republican donor with a gay son, and is funding candidates it believes worthy of support.
Because I would like to support the Republican Party (from afar in my case, of course). But I can’t. It is an unreasonable compact to ask someone to make, to support a party that will denigrate their fundamental personal relationships, prey on unfounded concerns, because they will improve people’s financial lives. It is a compact that some rich an well connected gay people can live with; whether equal marriage is five or fifteen years away for them, they don’t suffer or feel the social and economic consequences of so many gay people because of this legal inequality. And I don’t say this even as one who thinks a party’s position on gay rights should be the determining factor in whether to vote for or join a party, or I would not be in Fine Gael.
As with the Democratic Party, the Republican Party is and always has been a coalition. Within the Republican Party, these are crudely characterised as being between the fiscal hawks, religious conservatives and military hawks. What this misses is how the party targets the fears of poorer voters on social issues through a process of misdirection. Where the Republicans stand on gay rights resonates most with me because I’m gay. But there is more that is wrong with them. Take for example their very poor track record on immigration, as seen in recent laws in Arizona and Alabama. Rather than focus on the benefit of immigrants brining diverse skills and ideas to a community, they spin a protectionist story that has not helped these states economically. This year’s platform endorses these measures, a stark contrast from their 1960 platform when Richard Nixon ran for the first time, which for an increase in immigration.
The Republicans could have been a party that would make a strong moral and efficacious argument for the market and individual liberty. There are elected representatives and activists who do hold firm to these values. There are many with a view miles apart. But perhaps worse are those who assume a veil of prejudice because it is politically convenient.
Not that there is no hope with the Republican Party. On the question of equality for gay people, it does take a long view. Former Congressman Jim Kolbe, who was outed as gay while in office, believes that this is the last time the Republican platform will take these anti-gay positions. He could be right. If either Maine or Washington vote in favour of equal marriage at the polls in November, they will become the first state to do so by popular vote. That will change things, making it clear that there are votes to be lost. Perhaps a candidate like Gov. Mitch Daniels could take a stance similar to that of Barack Obama in 2008, when he stated that he was against same-sex marriage, but would vote No to Proposition 8 in California. But it’s a lot to expect.
I had a letter published in today’s Irish Times:
A chara, – Maolsheachlann Ó Ceallaigh writes (July 20th) that there’s surely a reason that most marriages throughout history have been between a man and a woman. There is. Most people are heterosexual. That this is true of the majority of people is not a good enough reason to deny what will always be a small minority of couples a chance to make the same commitment to each other.
In any of the 11 countries and six US states that now allow all couples to marry, naturally marriages between a man and a woman remain the norm, and are unaffected in their marriages by the change. How could allowing more people commit to each other send anything but a positive message about the value of marriage?
Allowing gay and lesbian couples to marry will enhance their comfort and security, it will make gay children and teenagers growing up in Ireland feel more included in society; it will provide constitutional support as well to children being raised by gay couples, and it will give peace of mind to the parents and wider family of gay people. With all this, anyone opposed should really feel obliged to provide more than a semantic objection. – Is mise,
Bray, Co Wicklow.
The theme of the International Day Against Homophobia and Transphobia (IDAHO) last month was Combating Homophobic and Transphobic Bullying in Our Schools. While programs directly addressing bullying are important, on their own they address only half of the issue. We should look to a situation whether rather than simply being treated sensitively, gay life is treated in the education system as a normal part of life. We should reconsider how lesbian, gay, bisexual and transgender people are considered, or more usually ignored, throughout the school curriculum. It shouldn’t just be a case of ‘Now we’re going to talk about gay people’.
When I studied W. H. Auden’s ‘Funeral Blues’ at a Junior Cert level in English, our class was commended for not being so immature as to ask if he was gay, which of course Auden was. With its lines,
He was my North, my South, my East and West,
My working week and my Sunday rest
My noon, my midnight, my talk, my song;
I thought that love would last forever, I was wrong.
it is as good as any poem to show the universality of feelings of attachment and grief, and the biographical context is as relevant as it would be for any other poet. We also studied The Merchant of Venice for the Junior Cert, and discussed the varieties of love, platonic, romantic and erotic in different relationships in the play. Why not consider whether Antonio’s feelings for Bassanio, a man for whom he was willing to put his life on the line for the sake of a some of money, could be seen as unrequited love? Not the only way of understanding the relationship, but neither an unreasonable one. The came principle of mentioning gay relationships when relevant should be true in Irish. And while the syllabuses of foreign languages do not include literature, as they did once, why shouldn’t the occasional French boy in comprehension be writing to his copain.
Someone gave, in conversation on this, the example of the History course, that in a profile of Edward Carson, it mentioned that it was his cross-examination of Oscar Wilde that led to the latter’s prosecution for ‘gross indecency’, without any explanation for what that meant. Similarly, in the case of Roger Casement, that his diaries recounting sexual relations with men were used against him in his trial is relevant to his biography.
Somewhat more positively, in discussing modern social and cultural history, the role of Hilton Edward and Micheál mac Liammóir could be mentioned. They were two Englishmen who met in Ireland, and who founded the Gate Theatre in 1928, managing it throughout their careers. They were arguably the one couple who were allowed to be gay in Ireland of the time, and were effectively, if not in words, acknowledged as such by the establishment. A later social history would include decriminalisation in 1993 in the context of other social change.
In Political Geography, the different legal position of gay or transgendered people should be considered just as other differences between countries are, from Argentina on one end of a scale, with full marriage and gender recognition rights, to countries like Iran, where gay men have recently been executed.
The Civic, Social and Political Education course (which has large room for improvement in any case) should consider LGBT rights in its context as an ongoing political debate, in Ireland and elsewhere. A curriculum of Religious Education that allowed criticism as much as consideration and comparison would discuss religion’s position on gay people as much as it does other matters of social policy.
And of course, Latin, Greek and Classical Civilisation lend themselves without much effort to mentioning the occasional gay historical character or mythical figure, with even a transgender character in the case of Tiresias.
In an article of a good while back (bookmarked for future blogging purposes), Donald Clarke made a comment that while well meant, misses crucial points, when he wrote ‘A person who disapproves of somebody on the basis of his or her recreational activities with consenting adults is a bigot’. Being gay is not something pertaining to a singular and private aspect of our lives; what man describes their relationship with their wife as ‘recreational activities’? But as important, we can’t allow being gay to be thought of as something that begins at 18. Being gay should be treated as a normal part of life in school, there no more or less than in life. This is simply about correcting the relative invisibility of gay people in what arises in school courses.
I was quite sceptical of Barack Obama from the time he announced his candidacy for the presidency in early 2007. I supported Hillary Clinton in the primaries, tho did support Obama against John McCain. I was never quite convinced by his rhetoric, and his inability to manage expectations played a part in subsequent disillusionment with his presidency. For example, making a commitment just after taking office that he would close Guantanamo Bay within a year, something that has yet to happen, was an odd political move. I would have liked to have seen a very different, market-based to health care reform, which could have tackled long care costs better than the Affordable Care Act, and to be clearly constitutional to boot. He also exhibits brazen self-regard, more so than we usually see from politicians. So I’m a natural cynic when it comes to Obama.
But tho I began my post here on Thursday welcoming President Obama’s endorsement of marriage equality by referencing his changing positions since 1996, as of now, I don’t see that it makes sense to critical of him. Let’s assume that Obama’s position since 1996 has been favourable towards allowing gay couples to marry, and “to fight all efforts by those who would stop this”. If to be the president who would during his first term in office endorse same-sex marriage, maybe he had to be a candidate who opposed it. His official process of evolution on the question mirrored the evolving views of the median American voter.
Some have been critical of Obama for not going further, and stating clearly that he would work to see change on a federal level. On KCRW’s Left, Right and Center this weekend, I heard Robert Scheer present the case that his failure of courage undermined the case he was making; to be consistent he should insist on immediate action. But that would be getting ahead of himself in a way that would be counter-productive. He has already ordered his department of Justice to stop defending the Defense of Marriage Act, which defines marriage for federal purpose as only that between a man and a woman; he has given his support for the Respect for Marriage Act, which would conversely recognise at a federal level any marriage legitimately performed at a state level.
While we expect political leaders to be ahead, the leadership on moral rights cannot all come from the head of the executive. We can expect them to play their part, but they lose their effectiveness if they are too many steps ahead, even if they are right.
The same panel on Left, Right and Center included David Frum, a former speechwriter for President George W. Bush, who welcomed the move, and hoped the Republicans would see reason on this question sooner rather than later, but feared a decision at a federal level would lead to decades-long division as in Roe v. Wade. The pace of the demographic shift makes that seem unlikely to me, and I would welcome a Supreme Court decision that affirmed equal protection to gay and lesbian couples under the Fourteenth Amendment. But it is fair that President Obama wait to see how that judicial process is to proceed before publicly intervening again.
Consider that ten years, it was still criminal in 2002 for two men to have sex (and in practice, as Dale Carpenter recounts, simply to live together as a couple); to borrow a phrase used in the New Yorker Political Scene podcast, imagine trying to convince someone that year that President Barack Hussein Obama had announced that he supported gay marriage, and political analysts were not sure if it would benefit, hurt him, or make no difference. It would seem like something out of a Stephen Fry alternate history novel.
While writing this piece, I came across an historical analogy for Obama’s evolution on gay rights, that of President Abraham Lincoln on slavery. Steve Chapman on Reason.com makes reference to the great Frederick Douglass,
The former slave and black leader Frederick Douglass might have understood. What he said of Lincoln’s approach to slavery could also be said of Obama on same-sex marriage: ‘Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent. But measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined.’
With Chapman, I think Barack Obama is taking the right approach, and he will be deserve to be remembered in years to come as the first president to take a stand on what would later be assumed so obviously to be right. And he could not have achieved this without being coy about his true feelings on the matter.
<b>Edit:</b> I was asked on Twitter to clarify exactly when I think politicians should lie. It is specific to a time of cultural change on a within a country where the president would hurt the momentum of their own cause on a question. I’m not talking about Barack Obama pretending to be a sceptic about international trade during the 2008 Democratic primaries, or about Enda Kenny and James Reilly pretending to be committed to Roscommon hospital in the last general election.
It is great news that President Barack Obama again holds the position he held in 1996, saying, “It is important for me to go ahead and affirm that I think same-sex couples should be able to get married” (with video here). Having publicly opposed equality in the intervening years, it is a major statement that he joins Presidents Jimmy Carter and Bill Clinton on the side of equality. Whether or not this was prompted by Vice President Joe Biden’s comments on Sunday, he is stating what most presume he believed, but it makes a difference that he sees it politically possible to do so.
With national opinion polls showing majorities in favour of equal marriage, there was no reason left for him to pretend not be on the right side of history on this question. Most imagined that a year or two into his second term, that he would announce that his position had finally evolved to support equality for gay and lesbian families. But he could reasonably have been accused of political cowardice; this way, he enters his second term clear on this policy.
Chris Cilizza in the Washington Post has analysed the political implications, predicting that there will be some downside for him on this. I’d broadly disagree. I think most Americans for whom opposition to equality in marriage is a salient issue would already be voting against Obama. He has made a commitment to equality for gay people part of his first term, from not defending the Defense of Marriage Act to his part in the end of Don’t Act Don’t Tell in the military. Some may point to polls against equality in swing states; what matters though, is for how many wing voters in these states is this a swing issue. Ultimately, no one should have been in any fundamental doubt about where he was on the spectrum.
For politically cynical among the Democrats, this will help his funding, bring out some voters, and stop others from who voted for him in 2008 casting votes instead for the Libertarian, Green or Justice Party candidates. But it will also force Mitt Romney to talk about this issue, which he really doesn’t want to do, but has signed a National Organization for Marriage pledge to support a Federal Marriage Amendment, banning same-sex marriage in all 50 states. I think the advantage in this regard would have been greater still had Obama announced this during the primaries, while Rick Santorum would have been there do highlight the religious fundamentalist wing of the Republican Party. On the whole, I think the political implications of this are marginal, though Obama may lose North Carolina.
Someone remarked to me yesterday evening that Obama in 2008 will presumably be the last time a Democratic candidate for president to be publicly opposed to allowing gay couples to marry. Could we see 2016 as the equivalent election for Republicans? Given the strong trend which is only gathering momentum, it wouldn’t surprise me, though I would certainly say so in the case of 2020.
Again, back to Barack Obama last night, this is indeed great news. This is not just about the electoral cycle. It is about every gay person in the United States, particularly those in difficult situations because of their sexuality, who knows that the president is a clear ally, finally the fierce advocate he promised he would be. And this will change minds. There are people till yesterday who could say to themselves that domestic/civil unions/partnerships must be all right, as it was the position of even Barack Obama. Now they will have to think again. This will change culture, which is just as important as changes in the law, the one complementing the other. The United States is a good few steps away now from achieving proper equality for all its gay, lesbian, bisexual or transgender citizens. But with POTUS on board, it has moved a major step in that direction.
I’m delighted to be involved in setting up Fine Gael LGBT, having its first meeting this evening, which will be addressed by Frances Fitzgerald, TD, Minister for Children and Youth Affairs.
We have yet to settle on formal policies and priorities of the group. Issues that would jump out for me would be equal marriage and ensuring that young lesbian, gay, bisexual and transgender people have a welcoming and open environment in school and the wider community. But our particular focus of the group will be decided in a deliberative manner in the coming months (for most of us, our political focus will shift back tomorrow to securing a Yes vote for the Stability Treaty). We don’t yet have formal spokespersons, except in an interim capacity, with an AGM also to be scheduled soon. So even though our inaugural meeting is this evening, we will not yet be formally launching with all our structures till we have some time for people to develop an interest in being involved.
Though part of the idea of the group is to give a structured outlet for those of us who are gay to shape decisions relating to changes in law or culture, this can’t become a group just for those who are lesbian, gay, bisexual or transgender. The developments in the past year, with motions passed on marriage and adoption at YFG Summer School, at YFG National Conference and at the Fine Gael Ard Fheis, came from a collective interest in the motions for debate in the organization, and was by no means something pushed by gay people alone. This work promoting these debates will continue outside of the confines of this group.
Our government colleagues in Labour also have an LGBT group, and while being distinctive in our approach, I’m sure there will be times when we will co-operate. But we should also look also to our ideological counterparts, if I can call them that, in LGBTory, who have been quite successful in their aims through the Conservative Party in government.
So these are just a few of my own ideas on this new venture. I’ve probably focused a lot on policy, as is my wont, but it will also be a visible sign of Fine Gael as a modern and inclusive party and will have a social aspect as well, to reassure the many lesbian, gay, bisexual and transgender members of the party that we are not insignificant in number.
I was delighted of course that today the Fine Gael Ard Fheis supported the motion, “That this Ard Fheis calls on the Government to ensure that the Constitutional Convention prioritises an analysis of the proposals for same-sex marriage in Ireland”, proposed by Mark O’Meara for Portmarnock/Baldoyle Branch and Gen. Richard Mulcahy YFG, supported by DCU YFG. Unfortunately, as I was helping the management of the Executive elections, I was not myself at the debate, but I know that there is real enthusiasm in parts of the party on this, particularly in Young Fine Gael.
This question has progressed remarkably quickly in recent years here in and many other countries, and I am quite optimistic that this pace will continue. It is firmly now in the mainstream of politics. It could be the clearest and simplest reform of the Constitutional Convention. I think we have good reason then to hope for equality between all couples within this term of government, after a campaign with all-party support, which I do believe can be convincingly won. It will need a good, strong, confident campaign, and I’m looking forward to it.
Most of the Fianna Fáil Ard Fheis meant little to me. There was nothing in Micheál Martin’s speech that made me feel that the party was on the cusp of a recovery or that they were going to offer a particularly distinctive voice. I acknowledge Martin’s apology on behalf of his party, but he could have made it stronger by referring directly to his time in cabinet. Philip O’Connor draws attention to his equivocations in this piece in The Journal. I found the whole speech, with all the time devoted to bins in Dublin, a little underwhelming. But of course I’d think that, wouldn’t I?
But I did notice that the Ard Fheis passed motions supporting marriage equality and for same-sex couples to be considered for adoption. They are to be commended for this, as is Martin for making his personal support clear on The Week in Politics last night. I noticed a lot of commentary on Facebook which was quite cynical in relation to this. But I don’t think it reflects any cynical attempt to gain votes which they weren’t interested in while they were in power, rather the very rapid social change on this matter. This is a growing norm, and as we look to what exists in other countries and in US states, very little has been offered on the other side.
I see no substantial reason that we would not see Fine Gael move in the same way. We might have a reputation because some of prominent members as being conservative and there is a Christian democratic tradition, but doesn’t necessarily mean an opposition to progress on this front. I’ve pointed on a number of occasions to the speech Charlie Flanagan made during the civil partnership debate. Others too from Fine Gael spoke during that same debate who stated explicitly or indirectly that civil partnership would only be a step towards equality, such as Dr James Reilly, Deirdre Clune and Simon Coveney, who gave a very honest speech on how he changed his own mind to support marriage. Of the 2011 intake, Seán Kyne urged Young Fine Gael members to vote for equal marriage at our summer school last July, and he as well as Simon Harris put questions recently to Alan Shatter, Minister for Justice, Equality and Defence, to make provision for children of same-sex couples.
What ultimately matters is that we support this before the referendum, which I expect could be in the second half of this government’s term in office, around 2015, to give time for the Constitution Convention to deliberate on this and its other issues. There will be another Ard Fheis before then, but we should move now, and vote on this at our Ard Fheis at the end of March. We should not let time go as the only party not in support of allowing gay and lesbian couples to marry. We should also give ourselves the chance to include this the party’s submission to the Constitutional Convention.
As this is moving closer to being a reality, we are going to have to start thinking about the specifics of how this change should take place. I had previously followed on the logic of Zappone–Gilligan that this could be achieved legislatively by amending the Civil Registration Act 2004. This view was argued by constitutional lawyers Sen. Ivana Bacik, SC, and Gerard Hogan, now a High Court Justice. But having asked other constitutional lawyers, there is enough doubt on this that I know think it should be put to a referendum. Article 41 as a whole does envisage a heterosexual marriage, as seen in provisions (which should be amended, if not deleted) such as a recognition of the duties of mothers within the home. I have no doubt in my mind that with a good campaign, it can be won.
Considering other provisions in the Constitution prohibiting sex discrimination (Articles 9.1.3° and 16.1.1°–3°), I would propose:
Article 41 of the Constitution is hereby amended as follows:
(a) insert new subsection 2°, “Ní bheidh aon chosc ar phósadh idir bheirt toisc iad bheith fireann nó baineann.”, after section 1° of section 3 of the English text,
(b) insert new subsection 2°, “No two people may be excluded from marriage by reason of their sex.”, after section 1° of section 3 of the English text,
(b) subsections 2° and 3° of section 3 of both texts shall be numbered as subsections 3° and 4°.