For the last few years, it’s been known that we will have a referendum on whether gay and lesbian couples can marry in this country. I’ve generally been cautiously optimistic, believed that with a good campaign, we will win this. I trust in the fundamental decency of the Irish people, when asked to consider this, will think of those they know, and give us the same chance to marry as others have.
Till this week. This was never going to be an easy campaign. Now we see it’s not going to be a fair campaign. Rory O’Neill spoke honestly on the Saturday Night Show about how media commentary is still one of the few areas he regularly witnesses speaking in a discriminatory way towards gay people. Let’s not forget that in the article about gay priests by Breda O’Brien which he referred, she claimed Roman Catholic doctrine on gay people (that we are intrinsically disordered towards an objective moral evil) is fair enough because they view gay relations in the same way as lying or gluttony, while not hating those who lie or overeat.
Someone who groups gay relations with these other traits should expect their motives questioned when they proceed to argue that we should be denied the chance to marry or raise children. Or similarly John Waters, who assumes we are engaged in a massive plot to bring down marriage because of envy, should not expect anyone to think that he thinks of gay people in the same way as the rest of the population. To question our motives, to think the time someone like myself has spent on this cause is about anything other than a hope that I might marry, and that any two who find that happiness in each other can do the same. And I will wonder about an institute which is reckless as to the relevancy of a study it cites in a proposal (which was otherwise poorly-referenced) to the constitutional convention to argue against our equality.
Rory O’Neill’s analysis was sophisticated. It was O’Connor who raised the word homophobia, and O’Neill then considered how prejudice can exist within us, to a greater to a lesser extent, and that it is something that we need to be aware of within ourselves. Someone who is “spending so much of [their] life, devoting energies to writing things, arguing things, coming on TV to do anything to try and stop people achieving what they think they need for happiness” does need to take the time to consider if what they are promoting is properly something they can stand by.
All of the material that Rory O’Neill challenged is in the public sphere. Anyone can read the articles Breda O’Brien, John Waters or David Quinn write week on week in the two bestselling daily newspapers and make their assessment. They can each respond in these columns if they wish. I fail to see how the comments on the Saturday Night Show could “injure their reputation in the eyes of reasonable members of society”. All they tell us is the assessment by a prominent gay activist of the journalistic and lobbying work of individuals mentioned. Someone might read their work in a differently in light of O’Neill’s assessment, but it could not be his comments that cause any injury to their reputation. To my mind, this is before we consider the defence of honest opinion, provided in section 20 of the Defamation Act 2009. (Again, ultimately I’ll defer to those with more legal knowledge; perhaps Brian Barrington, whose open letter was widely distributed yesterday.)
What followed was a shameful sequence from RTÉ, which bear repeating: action was taken against RTÉ and Rory O’Neill by members of the Iona Institute and by John Waters; the section of the interview was removed, with an odd reference in the explanation of it to the unfortunate death of one of their colleagues, despite the fact that he was not named and that the death occurred after the interview; Brendan O’Connor read an obsequious apology, which sounded as if was drafted by the staff of Iona; and RTÉ paid damages to the Iona Institute.
The term Orwellian may be overused, but as the use of political language to describe exactly the opposite of what it means, the line in the apology “It is an important part of democratic debate that people must be able to hold dissenting views on controversial issues” in explaining why they censored a guest and paid damages to those who didn’t like his comments fits the description perfectly. Iona also talk without any sense of irony of O’Neill attempting to bring the debate to an end, while they are the ones who have spent the past 12 months sending solicitors’ letters to their harsher critics.
While I’m sure Iona are delighted to have some more money for their campaign against equality, I don’t think this was mainly about cash. This will have a chilling effect on RTÉ scheduling over the next year and a half. They will be much more cautious about when and how they have outspoken lesbian, gay, bisexual or transgender guests on air. This will lead to our lives being discussed only from the perspective of a live, controversial debate. Instead of treating the fullness of our lives. This is why I am now much more concerned for the result, if it will take place with terms of debate set by the Iona Institute.
It’s trivial to say it, but most of our lives are just plain ordinary, including our romantic lives. But homophobia is unfortunately still part of our lives. Far much less so than it was, and to a rapidly decreasing degree. But it exists. I’m lucky to have experienced relatively little, but I have in my time heard homophobic comments, even from people I’ve been friends with, and not always had the guts to call them up on it. I know people have experienced much worse. There is still homophobic violence or verbal abuse. This is one of the aspects of why next year’s referendum result matters. Even for those who may not wish to marry, or for young people who are many years from even considering marriage, it matters. For as long as the state continues to treat us differently, others will take the opportunity, consciously or subconsciously, to do the same. Conversely, a strong vote in favour of equality will surely quicken the pace of the decline of homophobia as an acceptable prejudice.
So yes, our focus ahead of the referendum will be on the happiness we hope for from marriage, to do so just as our parents could, for the same reasons as anyone else would. But we can’t ignore or sideline the context of a legacy of prejudice against us and the problem with homophobia, however softly spoken.
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,
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.