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Outcome of the abortion bill
The Heads of the Protection of Life During Pregnancy Bill seem to fulfill minimal requirements of legislation in line with the ruling in Attorney General v. X.
In the wording of the first paragraph of Article 40.3.3°,
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
there are two clauses that the government had to consider in drafting this legislation, ‘equal’ and ‘as far as practicable’. It also had to be considered the ruling of the Supreme Court that ‘the risks to the life of the mother which should be considered by the Court included a real and substantial risk that the mother might commit suicide’.
In all cases, the meaning of Constitution is what the Supreme Court says it is. Article 34.4.5°–6° is itself explicit in this regard. Their ruling in 1992 meant that a risk of suicide has been grounds for abortion, not just from that date, but from the insertion of 40.3.3° into the Constitution in 1983. A doctor could have taken it upon themselves to administer an abortion in response to a diagnosis that there was a real and substantial risk that a woman might commit suicide. This legislation does not grant or remove additional rights to either the mother or the unborn; legislation tightly within the framework of Supreme Court interpretation of the Constitution cannot do this.
It may not have been the only measure permissible; someone might reasonably ask whether the government’s defence in D. v. Ireland, that there could be a recourse under Irish law for a termination in the case of fatal foetal abnormalities, could have been included in this bill. There might also have been flexibility in terms of the nature and composition of panels in the bill.
There will be some members of Fine Gael who break ranks to vote against this. The debate in the coming weeks will show how many they are, but I expect that the bill will come into law in a form not that far from this.
I do not expect that without further constitutional amendment, this bill lead will lead to more than a minimal increase in the number abortions performed in Ireland. Unlike measures in Britain and California from 1967, this bill refers only to situations that threaten the life, as distinct from the health, of the mother. It is not a small thing for a woman to declare that she is suicidal, and it is not something that the medical system takes lightly. The consequences for her personal freedom after such a declaration would be such that for many women seeking to terminate their pregnancy, travelling to Britain would be a preferable outcome.
While campaigners against abortion have resisted legislation in line with the X Case till now, and sought to amend the constitution in 1992 and 2002 to overturn it, I would expect that to largely die away as a focus, given the small scale of the change. Similarly, while legislation for the X Case has served as focus point for those seeking for more widespread access to abortion, that will shift to an amendment to remove 40.3.3, as advocated this week by Labour Cllr Jane Horgan-Jones, which would make legislation on abortion a matter for the Oireachtas, and not a constitutional matter. However, I cannot imagine that referendum occurring for quite some time.
A change in tone in the campaign for marriage since the Convention
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:
Constitutional Convention debate on marriage: Nice people, flawed process. #ccven—
Senator Rónán Mullen (@RonanMullen) April 14, 2013
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:
@colettebrowne Seen this?
tl.gd/n_1rjr8nr @WilliamQuill—
Paul Moloney (@oceanclub) April 18, 2013
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.
Could there be equal marriage across the United States this year?
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.
Ideological Turing Test when arguing politics
In a recent podcast from the Cato Institute, Arnold Kling presented a concept useful for those arguing with those of differing political philosophies. He was responding to Jason Brennan, who in his recent book Libertarianism: What everyone needs to know, contrasted libertarianism with the police-state of conservatism and the nanny-state of progressivism. Kling observed that the problem with these characterisations is that no (or at least hardly any) conservative or progressive would describe their worldview or ideal state in this way. For this reason, those debating are not starting with common starting points and terms of debate.
Between these three viewpoints, Kling identifies an axis of concern: for conservatives, it is between civilisation and barbarism; for progressives, it is between oppressors and oppressed; for libertarians, it is between coercion and free choice. The challenge when debating someone from a differing point of view is to admit that there are times when the axis and perspective they are focusing on is appropriate, but move to show why a certain case doesn’t fit so well.
A helpful exercise is to see when describing the other person’s point of view, if you could pass as someone who genuinely holds that perspective, that is, not to reduce it to stereotypes. This is the idea of an ideological Turing test, as adapted by Bryan Caplan from Paul Krugman. We should be more charitable about other people’s point of view, especially if we want to convince others of our own, accepting certain of their premises, before developing our case. This is not selling out or being deceptive, but part of a process of rational and respectful engagement.
Will Labour Left contest the next general election?
In 1944, the Irish Transport and General Workers’ Union, disaffiliated from the Labour Party because it believed the party was being infiltrated by communists, specifically the selection of Jim Larkin as a general election candidate. Five TDs (James Everett, Thomas Looney, John O’Leary, James Pattison and Dan Spring) associated with the ITGWU left Labour to form National Labour. They contested the 1944 general election as a separate party, winning four seats (Looney losing), and five seats in 1948 (James Hickey gaining). It formed part of the Inter-Party government, led by Fine Gael’s John A. Costello as Taoiseach, and with Labour, Clann na Poblachta and Clann na Talmhan. James Everett served as Minister for Posts and Telegraphs, and in working in government, their differences subsided, the National Labour TDs rejoined Labour in 1950 (Noel Whelan got the decade here wrong last Saturday, as well as Derek Keating and John Whelan’s names).
Could we see a similar short-term split? There are now five TDs (Willie Penrose, Tommy Broughan, Patrick Nulty, Róisín Shorthall and Colm Keaveney) and one Senators (James Heffernan) who were elected as Labour but who have lost or resigned the party whip. They continue as party members, speaking at party conference, but if this situation persists at the time of the next general election, it’s possible that they would contest on a separate common platform. The analogy with National Labour is that they would aim to rejoin the party fully in due course, on a change of leadership, or shift in policy direction. There are others who might contest under such a platform, possibly under a banner as Labour Left. Cian O’Callaghan, current Mayor of Fingal, who has worked for Patrick Nulty, comes to mind. This would be intended as a temporary split, the name here reflecting the dissent of Labour Left of the 1980s and early 1990s, as opposed to that of Militant, which did split completely, and when its members were expelled, most prominently Joe Higgins and Clare Daly, they did not plan to return. 1
Tho another possible outcome is that Labour would leave the government, and that these rebels would contest as full Labour Party candidates. If this rate of attrition continued, Eamon Gilmore could face a vote of confidence within the parliamentary party within the next two years. I want to see this coalition last, so this is not an outcome I would like to see.
Note: Paragraph edited on a prompt from @CiaranLyng
Could the US have equal marriage by next year?
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.
How the Fine Gael lost the Dáil vote on abortion in 1983 while in government
The events of the past week prompted me to look back to see how Article 40.3.3° was proposed in the Dáil, knowing that there was an odd circumstance in its passing as the only constitutional amendment that was not a government amendment. The speeches are interesting to read as a snapshot into Ireland of 1983, and Oliver J. Flanagan’s contribution stands out in that respect, as does the speculation from Fianna Fáil’s Dr Seán McCarthy as to whether the Taoiseach had been influenced by the “pro-abortionists in Young Fine Gael”.
Though further amended in 1992 to protect the freedom to travel and receive information, the substantive clause as still exists was inserted by the Eight Amendment to the Constitution Act, 1983,
3º The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
Dr Garret FitzGerald was then leading a coalition government of Fine Gael and Labour, but only 13 TDs from the two government parties actually voted for that wording.
The wording above was drafted by the Pro-Life Amendment Campaign. There had been fears since the US Supreme Court had found a right to abortion in Roe v. Wade in 1973, and the Pro-Life Amendment Campaign was further mobilised in the aftermath of Pope John Paul II’s visit to Ireland in 1979. By the third election between June 1981 and November 1982, they had secured commitments from both Fine Gael and Fianna Fáil to introduce this amendment. The Eighth Amendment to the Constitution Bill was first moved in the dying days of the Fianna Fáil government in November 1982.
Fine Gael initially accepted this wording and in the Programme for Government with Labour, it was agreed that Labour would have a free vote on the bill. It was moved by Michael Noonan as Minister for Justice in February 1983.
Fine Gael’s alternative wording
Peter Sutherland, the Attorney-General, subsequently advised of problems with the wording, and in April, Michael Noonan moved an alternative amendment,
Amendment One
3º Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.
This wording would have meant that the current legislation prohibiting abortion, the Offences Against the Person Act, 1861, could not be deemed unconstitutional, and similarly for any possible subsequent legislation on abortion. This would thereby prevent a Roe v. Wade–like decision in the courts.
At the same time, a law to allow for abortion would also be consistent with this alternative amendment. This led to splits in both government parties. In Fine Gael, TDs who maintained their support for the original wording abstained in the vote on the alternative amendment. Labour allowed a free vote, and split three ways, between those who supported the original wording, those who opposed any amendment, and those who accepted that there would be a referendum and saw the Fine Gael alternative as at least better the the Pro-Life Amendment Campaign original wording.
Michael Noonan’s reasons for opposing the original wording seem chillingly prescient in the current context. This was on 27 April 1983,
Briefly, those defects are twofold: first, that the expression “the unborn” is very ambiguous; second, that the reference to the equal rights of the mother is insufficient to guarantee that operations necessary to save the live of the mother but resulting in the death of the foetus may continue.
On the first point, it is scarcely necessary to say that objection is not being raised simply on the basis that there is a certain degree of ambiguity. Some ambiguity is probably inescapable — language is not a precise instrument. The criticism in this case is the extent of the ambiguity, a criticism which is strengthened by the fact that it was obviously accepted in order to avoid argument.
On the second point, I would like the record to show very clearly what is being said by way of criticism — and what is not being said. It is not being said that the wording would be held to make the operations in question unlawful. Nobody could say with certainty what interpretation a court might put on the words. What is being said is that, on the ordinary meaning of words, that should be the interpretation and that therefore there must be a definite risk.
Of the opposition parties, Fianna Fáil maintained a strict whip against the alternative and in favour of the original wording and the two Workers’ Party TDs were against any amendment.
With this division between the parties, the amendment proposed by Michael Noonan was defeated by 65 votes to 87.
Between the parties:
- of the 74 Fianna Fáil TDs, 73 voted against;
- of the 70 Fine Gael TDs voted in favour, 60 voted in favour;
- of 16 Labour TDs, 5 TDs voted in favour (Liam Kavanagh, Barry Desmond, Michael Moynihan, Seamus Pattison, Dick Spring) and 10 TDs voted against (Michael Bell, Joe Bermingham, Frank Cluskey, Eileen Desmond, Seán Treacy, Toddy O’Sullivan, Frank Prendergast, Ruairí Quinn, John Ryan, Mervyn Taylor);
- both Workers’ Party TDs voted against, and;
- both Independents, Neil Blaney and Tony Gregory voted against.
Workers’ Party amendments
The Workers’ Party proposed further amendments, but as there weren’t sufficient numbers in the voice vote, the house wasn’t divided, and all these were lost. Even tho they opposed the amendment altogether, they proposed them to make the amendment a lesser harm or clearer in its meaning, and these proposed changes to the original wording highlighted show the nuances to the discussion at the time.
Amendment Two
3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
Amendment Three
3º The State acknowledges the right to life of the unborn and, subject to the right of the mother to life and bodily integrity, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
Amendment Four
3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable without interference with any existing right or lawful opportunity of any citizen, by its laws to defend and vindicate that right.
Amendment Five
3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable without interference with any existing right or lawful opportunity of any citizen, by its laws to defend and vindicate that right. This subsection shall not be cognisable by any Court except in a case seeking to have section 58 of the Offences Against the Person Act, 1861, declared unconstitutional or contrary to any provision of this Constitution.
Original Pro-Life Amendment Campaign wording passes
After all attempts to change the wording had failed, the Dáil then proceeded to vote to retain the initial wording. This was a very strange vote; a vote to amend the constitution in which no Government Minister from the senior party voted. Nearly all the Fine Gael members who voted for the alternative wording abstained on this vote, while those who had abstained on the alternative voting in favour of this one. This motion passed by 87 vote to 13.
Between the parties:
- of the 74 Fianna Fáil TDs, 73 voted in favour;
- of 70 Fine Gael TDs, 8 TDs voted in favour (Michael Begley, Liam T. Cosgrave, Michael Joe Cosgrave, Joe Doyle, Oliver J. Flanagan, Alice Glenn, Tom O’Donnell and Godfrey Timmins), while 2 TDs voted against (Monica Barnes and Alan Shatter);
- of 16 Labour TDs, 5 voted in favour (Michael Bell, Frank McLoughlin, Frank Prendergast, John Ryan and Seán Treacy) and 8 TDs voted against (Joe Bermingham, Frank Cluskey, Barry Desmond, Eileen Desmond, Toddy O’Sullivan, Ruairí Quinn, Dick Spring and Mervyn Taylor);
- both Workers’ Party TDs voted against;
- and of the Independents, Neil Blaney voted in favour and Tony Gregory voted against.
The Bill proceeded to the Seanad where, after the three Trinity Senators, Catherine McGuinness, Mary Robinson and Shane Ross, were unsuccessful in pursuing amendments, it passed, with only Fianna Fáil Senators voting in favour.
Referendum
The referendum was held on 7 September, 1983. The leaders of the two government parties, Dr Garret FitzGerald and Dick Spring, both called for a No vote; the leader of the opposition, Charlie Haughey, called for a Yes vote. It was passed by 67% of the electorate, carried in all but five constituencies (all in Dublin), on a turnout of 54%.
Gays and Republicans
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.
Crist crosses for Convention. Who else has done this?
Charlie Crist, former Republican Governor of Florida 2007–11, will speak at the Democratic National Convention in Charlottesville Florida next week. He lost in the Senate Republican primary in 2010 to Marco Rubio, and in the general that year when contesting as an Independent. Crist endorsed President Barack Obama for re-election in the Tampa Bay Times over the weekend,
Pundits looking to reduce something as big as a statewide election to a single photograph have blamed the result of my 2010 campaign for U.S. Senate on my greeting of President Obama. I didn’t stand with our president because of what it could mean politically; I did it because uniting to recover from the worst financial crisis of our lifetimes was more important than party affiliation. I stood with our nation’s leader because it was right for my state.
President Obama has a strong record of doing what is best for America and Florida, and he built it by spending more time worrying about what his decisions would mean for the people than for his political fortunes. That’s what makes him the right leader for our times, and that’s why I’m proud to stand with him today.
He joins the ranks of a number of representatives of both parties in recent years who have marked their shift from their party base by speaking at the opposite party convention, who for obvious reasons are prominently promoted by their new hosts.
This year will also see Artur Davis, a Democratic Congressman from Alabama between 2003 and 2011, speak on behalf of Mitt Romney at the Republican Convention. Davis sought in 2010 to become the state’s first black Governor, but lost in the Democratic primary. He was an early supporter of Barack Obama, the first Congressman outside of Illinois to endorse his presidential bid, but then proceeded to vote against the Affordable Care Act, one of President Obama’s key pieces of legislation. In the past year, he joined the Republican Party, and has written that were he to re-enter politics, it would be as a Republican,
if I were to leave the sidelines, it would be as a member of the Republican Party that is fighting the drift in this country in a way that comes closest to my way of thinking: wearing a Democratic label no longer matches what I know about my country and its possibilities.
2008 saw Sen. Joe Lieberman speak at the Republican Convention, endorsing his good friend Sen. John McCain. Lieberman has been a Senator for Connecticut since 1989 and was Al Gore’s running mate in 2000. He was a strong supporter of the Iraq war, and lost a primary challenge in 2006. He went on to be elected in the general as an Independent Democrat and continues to caucus with the Democrats, and so was crucial in giving them their majority between 2007 and 2009 and their supermajority between 2009 and 2011. He is retiring this year and is not issuing an endorsement in this election.
The same year saw Jim Leach speak at the Democratic Convention to endorse Sen. Barack Obama. Leach was a Republican Congressman from Iowa from 1977 to 2007. He is most well known for the Gramm–Leach–Bliley Act in 1999, which repealed the Glass–Steagal Act 1933, and allowed investment banks, commercial banks and insurance companies to merge. His distance from the Republican Party was marked by his opposition to the Iraq war and to the tax cuts in 2003. In the 2006 election, he lost the support of his Republican base by refusing to distribute anti-gay material.
In 2004, Sen. Zell Miller gave the keynote address at the Republican Convention, having previously given the keynote address at the Democratic Convention in 1992 that nominated Bill Clinton. Miller had been a Democratic Governor of Georgia from 1991 to 1999, and a US Senator from 2000 to 2005. Over the course of his political career, he shifted to a more conservative position as his party was moving in a more liberal and progressive direction. He was a cosponsor of the Federal Marriage Amendment, which would have prohibited same-sex marriage across the US, and was a critic of 2004 Democratic presidential nominee Sen. John Kerry for his voting record on the military.
Letter to the Editor: A referendum on marriage
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,
WILLIAM QUILL,
Westfield Park,
Bray, Co Wicklow.
Liberal Democrats and the Lords
Just over two years ago, I supported the Liberal Democrats going into the 2010 Westminster election and I looked forward to the coalition agreement. I’d broadly have been supportive of the government in our neighbouring country, a test of policy in a country with similar culture yet in many aspects of politics quite different to our own. I’d even have supported most of the ideas in George Osborne’s recent controversial budget, be it the pasty, granny or caravan taxes, as I’d have a strong instinct against tax exemptions or expenditures, so was disappointed with the u-turns.
I’d have supported the AV referendum, and would generally support the need for political reform and renewal of institutions. It’s interesting to watch the debate on the House of Lords given the current debate in Ireland on the future of our Seanad. What was particularly interesting watching the debate last Monday was the small number of MPs from both Labour and Conservative sides who argued for complete abolition of the House of Lords, something I would sympathise with, but would be a major departure in the case of Britain given its traditions of parliament.
The problem of designing an upper house both in Britain and for those in Ireland who think the Seanad should be reformed is balancing democratic legitimacy of legislators with avoiding gridlock between two houses claiming democratic legitimacy.
The proposal in the House of Lords bill was for 80% of Lords to be elected for 15-year non-renewable terms using proportional representation by the list system in regional constituencies, as Britain currently elects its MEPs. The problem with this proposal is that it grants democratic legitimacy of an election, without accountability, as this set of legislators would not face the legislature after their decisions. While the current Lords have never faced the electorate, this very fact means that at least since 1945, they have deferred to the primacy of the House of Commons. The more I listened to speeches from Labour and Conservative MPs against the proposal, the more I felt it was a bad bill that deserved to be defeated.
It’s a very unfortunate measure for the Liberal Democrats to find themselves tripping up over. As a party, they have a reputation for being particularly wonkish, more interested in issues like political reform than the other parties. It seems to me indicative of why they are losing support in the polls and finding it difficult to gain ground. While reform of the House of Lords will gain them credit with their members, and is an important constitutional issue, they should not have allowed this to the one to cause such a backbench rebellion rather than any other proposal. They have lost political capital against their Conservative colleagues, particularly at the backbench level. They put too much faith in the government whips to deliver on this bill. I found myself agreeing very much with Conservative MP Louise Mensch on Twitter last week, finding common terms for reform but identifying the flaws in this proposal, and that beyond this issue, a real priority for the Liberal Democrats should be to work for equal marriage.
The Liberal Democrats can come back from this, but last week showed that while the coalition was working relatively smoothly at the cabinet level, there are clear tensions and resentments below.
Dublin in 2011 with Boundaries from 2012 Constituency Commission
Here’s be my estimation of how the seats in Dublin at the last election would have gone under the proposed boundaries by the Constituency Commission released today.
The purpose of this is really to show the notional result for future comparisons, rather the counterfactual of exactly how the last election would have been fought, as the boundaries would have changed party behaviour, but I’ve made a few assumptions about personalities in different constituencies.
In particular, these include:
- Paschal Donohoe to have stood for Dublin North-West rather than Dublin Central, having originally been elected to Dublin City Council for Cabra–Glasnevin, and Glasnevin now in DNW;
- Alex White rather than Eamonn Maloney to have been the second Labour TD in Dublin South-West, to cover both ends of the constituency, and
- Peter Mathews not to have been selected for Dublin Rathdown, a three-seater rather than a five-seater.
| Constituency | TDs |
|---|---|
| Dublin Bay North | Tommy Broughan (Lab) Richard Bruton (FG) Terence Flanagan (FG) Finian McGrath (Ind) Aodhán Ó Riordáin (Lab) |
| Dublin Bay South | Lucinda Creighton (FG) Kevin Humphreys (Lab) Eoghan Murphy (FG) Ruairi Quinn (Lab) |
| Dublin Central | Joe Costello (Lab) Mary Lou McDonald (SF) Maureen O’Sullivan (Ind) |
| Dublin Fingal | Clare Daly (SP) Alan Farrell (FG) Darragh O’Brien (FF) James Reilly (FG) Brendan Ryan (Lab) |
| Dublin Mid-West | Robert Dowds (Lab) Frances Fitzgerald (FG) Derek Keating (FG) Joanna Tuffy (Lab) |
| Dublin North-West | Paschal Donohoe (FG) Dessie Ellis (SF) Róisín Shortall (Lab) |
| Dublin Rathdown | Olivia Mitchell (FG) Shane Ross (Ind) Alan Shatter (FG) |
| Dublin South-Central | Catherine Byrne (FG) Eric Byrne (Lab) Joan Collins (PBP) Aengus Ó Snodaigh (SF) |
| Dublin South-West | Seán Crowe (SF) Brian Hayes (FG) Cáit Keane (FG) Pat Rabbitte (Lab) Alex White (Lab) |
| Dublin West | Joan Burton (Lab) Joe Higgins (SP) Brian Lenihan (FF) Leo Varadkar (FG) |
| Dún Laoghaire | Seán Barrett (FG) Richard Boyd Barrett (PBP) Eamon Gilmore (Lab) Mary Mitchell O’Connor (FG) |
The result from Dublin in 2011 was 18 Labour, 17 Fine Gael, 4 Sinn Féin, 2 Socialist Party, 2 People Before Profit, 1 Fianna Fáil and 3 Independents.
On this projection, the result with the revised boundaries would have been 17 Fine Gael, 14 Labour, 4 Sinn Féin, 2 Fianna Fáil, 2 Socialist Party, 2 People Before Profit and 3 Independents.
Quite a different result in all. But let me know if you think I’ve estimated anything poorly, or just generally overestimated how beneficial this would have been to Fine Gael as against Labour.
What is the point of the constitutional convention?
See Constitution.ie for the Constitution of Ireland and articles referenced. Tho for some reason, the downloadable version is missing Amendments passed since 2004.
I unfortunately have to agree with most of what Conor O’Mahony wrote in The Irish Times (‘This so-called constitutional convention is a charade’) and with Matthew Wall in agreement with him on PoliticalReform.ie (‘Confessions of a demoralised political scientist’). The proposed constitutional convention is a far cry from the Philadelphia convention in 1787 O’Mahony references. At this convention, delegates from the thirteen states rewrote the Articles of Confederation into an entirely new constitution, which though subject to 27 Amendments since its adoption in 1787, in the elements of the divisions and roles of the branches of government, has remained the broadly the same since then.
The Programme for Government agreed in March 2011 specified a number of issues for the convention:
- Review of our Dáil electoral system.
- Reducing the presidential term to 5 years and aligning it with the local and European elections
- Provision for same-sex marriage.
- Amending the clause on women in the home and encourage greater participation of women in public life.
- Removing blasphemy from the Constitution
- Possible reduction of the voting age.
- Other relevant constitutional amendments that may be recommended by the Convention.
Of course, the last item leaves the convention wide open, but there has been little to suggest that this will be a wide-ranging overview of the Constitution. This seems clear from the two items first on the agenda: whether to reduce the voting age from 18 to 17; and whether to reduce the presidential term from 7 years to 5 years. Satire could hardly devise two less pressing amendments.
I would vote against a reduction in the presidential term, unless it was in the context of a redefinition of the role. Reading Tom Reddy’s The Race for the Áras, I was reminded of the whole drawn-out distraction of last year. There are reasonable proposals for amendment on the president, making it one term only, or changing the nomination process, but having more frequent elections is not one.
I have an open mind on the voting age, though I think it would make sense to lower the voting age for local elections first, which does not require a referendum.
I would obviously welcome a referendum on same-sex marriage, and if it’s to have an airing in the constitutional convention first, so be it. But ultimately, it will be a fairly simple amendment, adding a subsection, “No two people may be excluded from marriage by reason of their sex”, to Article 41.3.
Section Article 41.2, “… her life within the home …”, should be deleted. Let’s not try to devise a statement on family life and the roles of parents that could in turn seem out-dated in a few decades’ time. This is really not the sort of thing for a constitution in any case. And delete the word “blasphemous” in Article 40.6.1° i.
So what should it discuss?
So of all the enumerated issues, that leaves the electoral system. This is the only one of these proposals that to my mind merits discussion by a convention, rather than a simple yes/no proposal that could be people to be debated like any other referendum.
Our system of election to the Dáil of proportional representation by single transferable vote is often blamed for clientelism and localism in Irish politics, leading to a subordination of national concerns to local issues. Would the Convention will reach a conclusion other than that of the Joint Oireachtas Committee on the Constitution two years ago, to keep the current system? Perhaps, as the membership of that committee inevitably had a status quo bias, having been elected under the current system.
What I don’t understand is why the abolition of the Seanad is not on the agenda. This is the sort of issue that would actually benefit from being discussed in a convention. There are references to the Seanad throughout the Constitution. Of the 141 Fine Gael and Labour Oireachtas members, I’m sure there is a considerable number, even if a minority, who would have doubts about the merits of this proposal. I would be in two minds on whether we need a second chamber. Finland, with a comparable population to Ireland’s, has a unicameral chamber; Sweden and Portugal with twice our population also survive with just one chamber. Yet surely there is a benefit to legislation being heard in more than one chamber. There are problems with the current Seanad and I have problem with the democratic legitimacy of the current membership.
I would certainly be against any abolition of the Seanad without a corresponding reform of the role of the Dáil and its committees. The idea behind last year’s failed amendment to allow the Oireachtas to conduct inquiries was not without merit at some level. But it made no sense to rush it within it in the first few months of the government when this constitutional convention was due to happen. The Convention should also consider ways in which the balance of power between the executive and the legislature might be rebalanced.
I understand that Enda Kenny has a personal attachment and commitment to putting the abolition of the Seanad to the people, but we would surely benefit from considering this proposal in the context of the other institutions of government.
The Constitutional Constitution is a good idea, but let’s have one that matters, where none of the fundamental institutional issues which are being discussed in amendments to the constitution are left out of its consideration.
