Five years ago we entered an election in circumstances which were embarrassing for our country. The outgoing government had just entered a bailout agreement with the Troika of the European Commission, the European Central Bank and the International Monetary Fund. Unemployment was at 14.3%.
The global economic situation has improved, and Ireland has more than taken advantage of it. We are now the fastest growing economy in the EU, with unemployment at 8.8% and falling, and a steadily improving rate of job creation. We have regained a position of respect within the European Union. This was done under the guidance of the Troika institutions, a program Ireland successfully exited from. Ireland compares very favourably to other countries which were very badly affected by the global economic crisis. This government of Fine Gael and Labour deserves credit for this stewardship of the economy.
No government shifts and improves a country’s budgetary position and economic standing as significantly as has been done here without taking decisions which merit or deserve criticism. This can be particularly said in the area of housing. However, what matters most is that there is a strong environment favouring job creation and growing incomes, to create the resources to tackle these problems, whether privately or by government.
But apart from the improved economic situation, there are many other ways in which we are a changed country since early 2011. We have seen a significant program of positive law reform.
It is now a crime to withhold information on the abuse of children. Our Taoiseach Enda Kenny spoke out strongly in the Dáil, condemning the role of the Roman Catholic Church and the Vatican in covering up the sexual abuse of children, the first Taoiseach to do so in clear and unambiguous terms. Children are now specifically protected in the Constitution, so that their voice can be heard in the legal process and their best interests considered.
Instead of filing in the District Court, in between regular business there, new Irish citizens now swear their allegiance in welcoming and open Citizenship Ceremonies.
After a wait of 21 years, and many governments, we finally had legislation in response to the X Case, which activists had called for since the judgment, legislation which certainly came at political cost, the first change to abortion law in this country since 1861. I would support more extensive reform, but this is as far as our current constitutional position allows, and it made space for debate on the next stage from here.
Local authorities now have the power to alter the local property tax within a range of 15% on either side of a base rate, giving much greater meaning and effect to local elections than before. The next Ceann Comhairle will be elected by secret ballot of TDs, creating a measure of independence from the government.
Reform of minor sentencing now allows for fines by installments, rather than needlessly sending people for short prison sentences.
We had the beginning of the process of school divestment from religious management, though admittedly this has been a process that has been slower than desired.
Gender quotas for candidate selection at general elections were introduced; though it will take more than one election to have an effect on the makeup of the Dáil, it is the beginning of a process.
A new Register of Lobbyists was created to monitor corruption in public services and provision.
The government called a vote on marriage equality, and with so many others too, strongly campaigned for a Yes vote. Both parties did so enthusiastically, and our country had a moment of pride on the world stage when we became the first in the world to vote in support of equal marriage in a popular referendum, in a campaign that captured the public imagination.
Last year also saw the enactment of one of the best gender recognition laws worldwide, with provision within the act itself for progressive review in two years’ time.
The Children and Family Relationships Act was the most comprehensive review of family law since the 1960s, which among its many provisions, gave fathers greater automatic guardianship in cases of cohabitation, allowed cohabiting couples or civil partners as well as married couples to adopt jointly, and provided for donor-assisted reproduction.
Changes to equality law mean that the ethos of a school or hospital can no longer be the basis of employment discrimination solely on the basis of personal characteristics like sexuality, or family status, or any of the other grounds of anti-discrimination.
I will be voting for a return of this government of Fine Gael and Labour. I do not expect it to be returned to office. But I do expect that it will be remembered as a reforming government, and that these many reforms will stand well to this country, improving the lives of those who live here in many small and significant ways, allowing us to continue to become a more open society.
Saturday 23 May 2015 was definitely one of the best days of my life.
In the few days before, I had been becoming more optimistic about the result. But even still, the night before the poll, I barely slept, which wasn’t ideal, as I had the last of my summer exams on the afternoon of polling day! I voted as polls opened at 7, as I so often do. But it was great to go down there with my sister Ursula, then catch the 7.04 train from Bray. I tuned into what was happening on Facebook and Twitter, and was bowled over with the emotion by the enthusiasm for the occasion, how many were flying and sailing #hometovote. But I had to maintain focus on that exam!
At 5, as the class moved down to the King’s Inn, and the conversation stayed on the exam, I had only the referendum and its place in wider social change in Ireland on my mind, so went with a few of them down to the Bernard Shaw, which was in a more political mood.
Meeting the Dublin Bay South canvassers in Slattery’s that night, as polls were closing, I ventured to hope to one that we could have reached 58%. Yet the following morning, about an hour before boxes were to open, I noted that anything over 53.7% would put us above Washington, which approved of marriage equality by popular vote in 2012. But from early in the day as we tallied the votes, it was clear it’d be more comfortable than that. The first box I tallied was from Curtlestown, just outside Bray, with 212 Yes to 75 No. A few minute or two later, I saw a tweet from Tiernan Brady that Bundoran had a result of 60%, and it was clear this was an extensive win. I was pleased to find out later in the morning that my own box in Bray got a high Yes vote of 301 to 105.
Every vote was important. Though many of us went through periods during the campaign where we imagined that it was going badly, that we might lose, and that a win no matter how small was a win nonetheless, it was important that we got a clear result, across the whole country. This wasn’t an urban Yes and a rural No, as we’ve seen in previous referendums. I haven’t seen the tallies from Ballinasloe or Ballincollig, but they’re likely to have seen a Yes vote, like most other towns across the country, despite the predictions a few months ago of Sen. Rónán Mullen.
It was wonderful to be in Dublin Castle for the result, to see how much joy there was among the crowds who had gathered there and on the streets outside. Then to meet other canvassers in Jury’s hotel in Ballsbridge. It was especially nice to be there with two friends I had been with the Hist committee ten years earlier. Ten years ago I had been sidelining what feelings I had of being gay because I didn’t think it practical to pay heed them. Perhaps it was fear of attention, that I thought it would be easier to get by if I acted as if I were straight. Talking to one of those two friends that night, I wondered, “If only I had known then that we would be here today”. After thinking on what I said, her response was perfect: “If we’d known then, then today wouldn’t feel so amazing”.
That explains so much of the joy that we saw throughout the country that day. It wasn’t just that we were pleased with the result in itself, and relief that the work of the campaign had gone the right way, but how far we’ve come.
This great success wouldn’t have happened without those who worked at each stage of the way. Some campaigners who worked in the foundation of the Campaign for Homosexual Law Reform in 1975, such as Sen. David Norris and former president Mary McAleese, who played a key role in this campaign. Norris’s cases, represented by former president Mary Robinson, with the High Court and Supreme Court finding against him, before his victory in the European Court of Human Rights. The Gay and Lesbian Equality Network (GLEN), were prominent in the work leading up to decriminalisation in 1993 and civil partnership in 2010, as they were in this campaign. There was Marriage Equality, with its single-issue focus on this campaign, and the very important work from Michael Barron and others in Belong To, with their focus on the needs and concerns of young lesbian, gay, bi and trans people in Ireland. Each year at Pride, we see the wide range of organisations working to achieve and promote equality, and all of these deserve credit for the change in the culture that contributed to the high result.
One of the great things of these recent years for me was to get to know these people well, to work with them. I’ve made many great friends over these years. My own avenue to the campaign was through politics. Contrary to what Una Mullally wrote during the week, I do see a strong role for parties as a source of political change. Not everyone can find a party that suits them, and for others, the focus of a particular campaign or organisation serves their aim better. But the energy we saw in the campaign should hopefully find its way into the political process, especially as we look ahead towards the coming general election. For the campaign to be successful in the way it was, it needed both the approval of the political process, in the establishment of the constitutional convention which proposed it, and in the passage of the amendment bill through the Oireachtas, and also the experience in canvassing. Our campaign in Wicklow was led by Ian McGahon, who had been a local election candidate for Labour, and as well as myself from Fine Gael, we also had James Doyle, who stood last year for Fianna Fáil. This combined experience mattered, even as the vast majority of those who canvassed with us had never done so before. We also benefited in different ways from the support of our local TDs Andrew Doyle, Simon Harris and Anne Ferris.
I was quite pleased with the role Fine Gael played in this campaign and the political process leading up to this. When I joined the party in 2009, I had recently begun to come out as gay, so it was very much on my mind. But at that stage, while I saw a dynamism in the party in many areas, there were a few conservative voices on this issue, most notably Lucinda Creighton, who caused us a lot of trouble before the 2011 election – though she too came out in favour in the end!
It was Charlie Flanagan’s speech as Justice Spokesperson in response to the civil partnership bill in November of that year that confirmed for me that there was a place for me in the party, that I could imagine the party speaking out strongly in favour of equality. Even after a motion I put to the 2010 YFG Summer School was narrowly defeated, I stayed on, because of that speech, in which he hoped it would be a step towards full equality. I was elected to the YFG National Exec, appointed as Director of Policy, and then proposed the motion again at Summer School in 2011, when there was barely any opposition to speak of. It was great to see the change in the organisation, with so many there wearing white ribbons on their lapels, which Maeve Howe, who was seconding the motion with me, had made to promote the motion.
At the 2012 Fine Gael Ard Fheis, another friend of mine from Trinity, Mark O’Meara had proposed a motion in favour of marriage equality. Yet the party watered it down to the focus to one on the constitutional convention. It was through the leadership of Jerry Buttimer that we saw change take hold within the parliamentary party. He was the first Fine Gael TD to come out as gay, and I was proud to join him from the start in the work of the newly established Fine Gael LGBT. We were small at first, as seen in pictures of our delegation to Dublin Pride that year, but we grew in prominence, and played an important role in bringing the conversations on the lives and relationships of LGBT people to party members. We had great assistance in establishing ourselves from our general secretary Tom Curran, who shared his own family story during the campaign.
There are many others in the parliamentary party I could mention here, though I would pay a particular tribute to Marcella Corcoran Kennedy, our vice chair on Fine Gael LGBT. We were in a good position with both ministers for justice during this period, with Alan Shatter and Frances Fitzgerald showing a clear commitment to equality, and through their efforts at different stages, we saw the passage of the comprehensive reform of family law in the Children and Family Relationships Act. During these few years, the understanding of Enda Kenny has grown, from when he was jumping over flowerpots to avoid answering questions, to dropping into our Christmas drinks in Panti Bar, and speaking with a true insight when launching the Fine Gael campaign.
The end of the campaign brought with it a strange feeling. We had a great celebration at home on the Sunday. Then in the days after, I came across a few in work who had voted No. Some were light-hearted about it, but others were bitter. Despite the high Yes vote as evidence of Ireland as an open society, there were still many who voted No. The result will certainly make lesbian, gay, bi and trans people feel more relaxed and comfortable in our country, as we saw in reports of gay couples feeling more confident holding hands in public since the vote, but also with an awareness that homophobia still exists. On the other hand, it was to be able to just walk away from comments, not be in campaign mode, where I’d feel an obligation to counter what they said for any wavering voters there. And I should say, most in work were very positive in the days after the referendum, some of them having spotted me in the news coverage.
I also heard of gay people who knew of immediate family members who had voted No. Exhilarating as the campaign was, it wasn’t an easy one. Putting it to a vote wasn’t all positive. It was sometimes difficult to canvass, not knowing what the response would be. I’ve had negative responses before, canvassing for both the PDs and Fine Gael, but that wasn’t personal in the way this was. But though my exam schedule meant I couldn’t go out as often as I’d like, it still always felt worthwhile doing so, and was glad I did what I could.
The emotional comedown was difficult, knowing that it was over. I know I’m not alone in that, and it’s good to see a focus from the Yes Equality campaign on emotional well-being. The campaign wasn’t easy, putting so much of ourselves out there, directly or indirectly, having our lives, or the lives of friends or family, as a matter of public debate or disagreement. That’s part of what took me time to write this. The relief of knowing that this was no longer something I’d have to think about, at least as far as Ireland goes. It will be a while before it truly sinks in, whether it’s after what will be an amazing Dublin Pride, the legislation is enacted, or we see the first marriages take place. But there are already small effects of the change. It is a great feeling to know that I will not have to campaign on this again. I will watch with interest what happens in other countries, how big the majority will be on the US Supreme Court, but no longer with half an eye on the momentum it will build for change here.
Almost immediately, we heard people asking what’s next. It was great to see progress so swiftly on an improved gender recognition bill, one of the best in the world. The trans members of our community had stood with us during this campaign, like Sam Blanckensee here in Wicklow, and it’s great to see that there is something for them too to have Pride in their country this year. Whether someone identifies as male or female, or somewhere along the spectrum, should be their decision alone, a simple matter of a free choice in a free society. Given the prevalence of single-sex school, I hope the review in two years which forms part of the bill will make provision for those under 16.
There are, of course, many other social issues in need of legislative and constitutional reform. There always will be. Not all these campaigns can be compared precisely in how they will succeed to this campaign for marriage equality. The rapid change in attitudes that occurred as more people came out to their family and friends, and in the context of a global debate and legal change (unfortunately in both directions), cannot be so easily replicated. But the lesson must be to maintain focus in further campaigns on the lives and experiences of individuals, and how restrictive laws affect them. We have a great group of people in Wicklow, and we mean to find ways to continue to campaign.
It was a great campaign to be involved in, and one I’m sure I will always cherish. And that day has made possible so many great days for so many, even better than the win itself, not just this year, but forever more.
This is the sixth referendum campaign I’ve taken part in. I’ve also been to the count centre after every general and local election since 1997. I was emotionally invested in the result on each occasion. I have both great and difficult memories from those count days. Yet I will watch the results come in on Saturday with more trepidation than ever before. This isn’t normal politics, whether in the distribution of resources, or arrangements of political structures. This referendum is about me, and others like me, a political decision on our lives and relationships, and our place in Irish society.
It is the natural step in the decline of animosity and the growth of empathy towards lesbian, gay, bisexual and transgender people in Ireland and elsewhere, that we would have the same opportunity to marry as anyone else. Slowly at first, and then in rapid succession, other countries and territories have come to view the limitation of marriage to heterosexual couples as an unjust exclusion, and changed their laws to reflect this new insight and understanding.
We have seen since the beginning of this year in particular what a Yes vote would mean to so many people, what a difference it would make. Those who were quiet for decades about this part of their lives, silent even to themselves, who felt compelled to speak out. And felt so much better for it. And we can think of young people, beginning to realize their difference from their peers, how wonderful the effect of a Yes vote would be for them, how devastating the effect of a No vote.
Being gay is not a small part of who I am. It doesn’t feel right to say that I just happen to be gay. It is not an incidental feature like height or hair colour, but a distinguishing feature of one of the relationships most important to me. From when I properly realized that future romantic relationships would most likely be with other men, it was something I could not but see as an important part of who I am. Indeed, it was before then, though I did not yet fully realize it. It is important because of where we now stand in society. A successful result will allow us each to determine its significance for ourselves. I look forward to the idea that my romantic life will no longer be a political issue.
This isn’t about any need for validation, but a commitment that society should treat us all with equal concern and respect, and that where the state is involved in our lives, our laws should recognize our equal dignity. With civil partnership and family law reform in place, to withhold marriage is such an arbitrary and needless act of discrimination.
When I attended a wedding service of two friends of mine earlier this year, something that stood out is our part in that. Not only did they commit to each other, for better, for worse, but we, the community of friends and family gathered there, also pledged to stand by them. The vote this Friday is that moment writ large. It is a chance to say clearly that when two people choose to make this commitment, we will stand by them, and hold their relationship as something to value.
So vote Yes. Be part of what should be a great moment for so many of us. Plan your trip to the polling station on Friday, and make sure others you know have done the same. Every vote will send a message, and every Yes vote will help secure a more equal Ireland.
Chief Justice John Roberts is usually a reliable vote among the conservatives on the nine-member court. Yet in NFIB v Sibelius (2012), he voted with the four liberals to find that the Affordable Care Act (ACA) was constitutional. He did so on narrower grounds than the four liberals, relying on the taxation power rather than the commerce clause. It is widely accepted that Roberts had originally intended to strike down the law, but changed his mind in the month beforehand, based in part on the political calculus that it would damage the Court’s political reputation were it to strike down Barack Obama’s key legislative achievement. It would have appeared too partisan for the five justices appointed by Republican presidents to vote to strike it down, with the four appointed by Democratic presidents to vote to uphold it, and affected the court’s reputation as a neutral umpire calling ball and strikes.
The ACA is back before the court this term, in King v Burwell, not on the validity of the law, but its application. But if Roberts did not hinder it in 2012, he is unlikely to do so now after so many have already taken advantage of it. And in this case, he has cover from Anthony Kennedy, who voted against the ACA in NFIB, seems likely to uphold its application in this case.
The blockbuster case of this term is Obergefell v Hodges and its related cases, which will be heard this Tuesday, and is likely to settle the question of equal marriage for gay couples in the United States. The court themselves admit the difference between it and other cases this term with a link to briefs for the case on their home page, and agreeing to release the audio recording of oral argument on Tuesday, rather than waiting till the end of the week as standard.
There’s no reason to expect that any of the five justices who struck down the Defense of Marriage Act in United States v Windsor (2013) will not apply similar reasoning to state bans on same-sex marriage. But Roberts was in the minority in Windsor. Why would he vote to strike down these bans at a state level if he would not do that to the federal legislation two years ago?
John Roberts was appointed as Chief Justice in 2005 at the age of 50. Four of the associate justices are aged between 76 and 82. We should expect that Roberts will remain leading the court till at least 2030. Roberts is politically astute enough to know that this case will be regarded as a landmark. Will he want to risk the opprobrium of legal analysts in a decade’s time appearing before him wondering how he could have got it so wrong? It’s easier for Antonin Scalia, not being in the pole position of Chief Justice, or indeed Samuel Alito, who like Roberts was appointed in 2005 by George W. Bush.
Scalia and Alito both gave lengthy dissents in Windsor, with which Clarence Thomas joined. Roberts, by contrast, wrote a succinct dissent, of a mere three pages. He joined Scalia only on the jurisdictional matter, finding that the court should not have decided the case at all, as the United States government was not contesting Edie Windsor’s claim. Roberts’ short dissent justified the Defense of Marriage Act on the basis of uniformity of marriage rules, rather than the blistering terms of Scalia’s dissent defending the enforcement of traditional moral and sexual norms.
Might Roberts wish to deprive Kennedy the pleasure of his place in history of completing a series of judgments in favour of constitutional protection to gay people. From Romer v Evans (1996), to Lawrence v Texas (2003), to United States v Windsor (2013), Anthony Kennedy wrote all of the case law progressing gay equality. Eric Segall recently wrote about the rivalry between Roberts and Kennedy for perceived control of the court.
The author who writes opinion of the court is assigned by the most senior justice in the majority. If the majority is the same five as in Windsor, that would be Anthony Kennedy, who will surely assign it to himself. But if Roberts were to join the majority as the sixth vote in favour of requiring all states to license a marriage between two people of the same sex, he could then choose to assign the opinion to himself.
So, both because he should be able to project the landmark status of the decision, and because of rivalry with the other moderate conservative voice, don’t be surprised if Roberts strikes down the bans. But aside from the politics of it, there’s nothing in any of his other votes on social reform cases to suggest that he will do so!
So the United States Supreme Court has granted certiorari in from cases on state bans on the marriage of gay and lesbian couples: Obergefell v Hodges (from Ohio), Tanco v Haslam (Tennessee), DeBoer v Snyder (Michigan), and Bourke v Beshear (Kentucky). These are appeals of the opinion of Judge Sutton in the Sixth Circuit, who found state bans to be constitutional in November, while the Fourth, Seventh and Tenth Circuit Courts had previously ruled against state bans.
There will be two questions before the Supreme Court:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
I fully expect them to answer both questions in the affirmative, reversing the judgment of Judge Sutton, recognising a constitutional guarantee of equal civil marriage in all fifty states.
Speculation has already focused on Anthony Kennedy. They are right to do so but not as a swing vote who could go yea or nay on either side. Most analysis factors in the likely breakdown of the court as four liberal justices likely to strike down states bans (Ginsburg, Breyer, Sotomayor and Kagan) and four conservative justices likely to uphold them (Roberts CJ, Scalia, Thomas and Alito), with Anthony Kennedy as the swing vote. To my mind, this mischaracterises the record of Kennedy on this topic, and the role he is likely to play when it comes to the opinion of the court (simplistic as any categorization of justices is, even as I divide them here).
The US Supreme Court has issued three full opinions which extended constitutional protections to gay people against discrimination by government: Romer v Evans (1996), striking down an amendment to the Colorado constitution denying protected status to homosexual or bisexual people; Lawrence v Texas (2003), striking down anti-sodomy laws in Texas, and consequently in 13 other states; and US v Windsor (2013), striking down Section 3 of the Defense of Marriage Act, which recognized only marriage between a man and a woman for federal purposes. The author of all three opinions was Anthony Kennedy. None of these were equivocal or half-hearted. What makes anyone think he’ll go thus far and no further? Read more…
Today, the US Supreme Court denied certiorari to challenges to decisions of the Fourth, Seventh and Tenth Circuit Courts of Appeal, which had in turn upheld decisions of federal district courts that bans on lesbian and gay couples from marrying in Indiana, Oklahoma, Utah, Virginia, and Wisconsin contravened provisions of the US Constitution.
This had the immediate consequence of bringing equal civil marriage to these five states. The effect of supreme court not taking a decision led to the biggest expansion by number of states seen to date.
The day continued, as Colorado dropped its challenge. So how does the Circuit system work, and which states could be next?
Beneath the Supreme Court, the United States is administered by geographically-based courts of appeals. This table details the division, with those states which at the time of writing have equal civil marriage for gay and lesbian couples highlighted in bold:
|1st||Maine, Massachusetts, New Hampshire, Rhode Island|
|2nd||Connecticut, New York, Vermont|
|3rd||Delaware, New Jersey, Pennsylvania|
|4th||Maryland, North Carolina, South Carolina, Virginia, West Virginia|
|5th||Louisiana, Mississippi, Texas|
|6th||Kentucky, Michigan, Ohio, Tennessee|
|7th||Illinois, Indiana, Wisconsin|
|8th||Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota|
|9th||Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington|
|10th||Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming|
|11th||Alabama, Florida, Georgia|
|DC||District of Columbia|
A rule of precedent applies at each of these levels. The district courts in the states are bound by decisions of the court of appeals of their own circuit, just as the circuit courts of appeal are bound by the supreme court. This is why the attorney-general in Colorado dropped the challenge so soon after the news today; with the decisions of the tenth circuit court of appeals that found bans in Utah and Oklahoma to be unconstitutional fully in effect, the same would result with any defence of the ban in Colorado.
We should then soon see a similar situation in North Carolina, South Carolina and West Virginia in the Fourth Circuit, and in Kansas and Wyoming in the Tenth, from a combination of state officials not defending the bans, and district court judges coming to swift decisions based on these precedents.
We are awaiting decisions from the Sixth Circuit, which heard arguments in the beginning of August, and from the Ninth Circuit, which heard arguments at the beginning of September. While the court in the Ninth Circuit seemed to follow the trend of most federal courts, in being more critical of the arguments for maintaining the bans, this is less certain in the Sixth Circuit. Listening to the oral argument, I would agree with Stern that Judge Sutton didn’t seem eager to press ahead with this. However, a few things have changed since early August, from Judge Posner’s excellent, cutting judgment in the Seventh Circuit, to the denial of cert by the Supreme Court today.
In the Sixth Circuit, Judge Sutton asked on a number of occasions why he would not be bound by the precedent of the Supreme Court in Baker v Nelson (1971), in which the court wrote succinctly on a Minnesota case on a gay couple, “The appeal is dismissed for want of a substantial federal question”. This was a mandatory review, so was considered binding on the merits. However, with the denial of cert today, Judge Sutton can no longer hide behind Baker, as the Supreme Court has effectively that it doesn’t see the decisions favouring equality as a challenge to its precedent.
I don’t think the Supreme Court will hear a case unless and until any of the circuit courts uphold the constitutionality of a state ban. This could occur in the Sixth Circuit; it could also occur in the Fifth Circuit, which will be hearing cases relating to Texas and Louisiana soon. These are appeals to ban in Texas which was struck down, and a ban in Louisiana which will be upheld.
Equality advocates want the Supreme Court to hear a case on this matter sooner rather than later, to lead to an opinion that with one fell swoop would bring equal civil marriage to gay and lesbian couples across the whole of the United States. There is little reason to suppose that any of the five who voted to strike down a section of the Defense of Marriage Act in United States v Windsor (2013) would not also strike down all bans as unconstitutional, least of all the one who wrote that judgment, Justice Anthony Kennedy. The four who would have upheld DOMA surely suppose the same thing of their colleagues as the rest of us.
There is another interest too here, that of standing by the sovereignty and competence of lower courts. It is within their remit to determine constitutional questions within their jurisdiction; the Supreme Court should not hear a case simply because there’s public demand for a decision of a lower court to be extended.
It takes four justices to grant cert to a case. In the case of these circuit decisions, the five were of course happy to let them stand; the four may not have agreed with them, but not either wish to hasten the moment when the court would rule for equality for all.
This is why supporters of equality might paradoxically hope that either the Fifth or Sixth Circuit Courts of Appeals will decide to uphold bans. Not only would there then be a circuit split, but a result the anti-DOMA 5 would surely feel confident to see challenged before the whole court.
We’ll wait and see.
The new term of the US Supreme Court begins today, and their docket for this term will begin to fill up. The nine members of the court decide themselves which cases to hear, of the many appeals from lower court decisions across the country. Among they many they could choose this term are a number of defences to state bans on either the recognition or performance of marriage between couples of the same sex. This would lead to a decision affecting all US states by June 2015. It is not long since the Supreme Court last considered cases relating to marriage, when they ruled on United States v Windsor in 2013, leading the federal recognition of marriages between same-sex couples as performed by these states. Why makes these cases different?
A lot of the commentary in June 2013 spoke of the compromise the court reached, in striking down the ban on federal recognition in Section 3 of the Defense of Marriage Act (DOMA), while declining to consider the implications of the other case before it beyond California. This is a simplistic view of that case. This second case that year was Hollingsworth v Perry, a case which originated as Perry v Schwarzenegger, the culmination of a challenge to Proposition 8, the 2008 ballot initiative which had added to the California constitution the clause, “Only marriage between a man and a woman is valid or recognized in California”. In August 2010, US District Court Judge Vaughn Walker became the first of many federal judges to find a ban on same-sex marriage to contravene the US constitution. The state of California accepted the court’s ruling, and the appeal was taken up by those who had campaigned for Proposition 8. The Supreme Court that they did not have standing to do so, i.e. they did not have a direct stake in the outcome. It remained a matter for an organ of the state to defend a state law. Rather than being a formula drafted to dodge addressing a hot-button issue too soon, it would have been more questionable had they decided to consider the case. In 1996, the court came to a similar conclusion in Arizonans for Official English v Arizona, and the court should adhere to its precedents unless there are clear and compelling reasons to revisit a previous ruling.
Windsor ruled on Section 3 of DOMA, as this was the only question before it in that case. Writing the opinion of the court, Justice Anthony Kennedy held in clear and eloquent terms that the provision was unconstitutional. He wrote with an understanding of the change in attitudes we are witnessing, “until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage … Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community”. After acknowledging the many harms of such a ban on recognition, including to the children of same-sex couples, Kennedy concluded “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”
While Justice Kennedy did spend a considerable portion of the opinion defending the right of the states against the federal government in relation to marriage, this was in support of New York in including same-sex couples. Citing Loving v. Virginia (the 1967 case which ended state bans on interracial marriage), he wrote “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons”.
Following this judgment, many cases proceeded in federal district courts challenging state bans. The first judgment was in December 2013 in Utah, where Judge Robert Shelby cited not only the opinion of Kennedy in Windsor, but also the dissenting opinion of Justice Antonin Scalia, who predicted that it would be a very small step from striking down the federal provisions in DOMA to striking down the bans in the states. Ten other district court judges came to the same conclusion when considering state bans across the country, ruling each of them unconstitutional; in September, Judge Martin Feldman in Louisiana became the first to write a court opinion upholding such a ban.
While some of these decisions applied with brief effect, most of them were stayed pending further appeal, so marriage has not been extended in these states (Pennsylvania being an exception, where the state accepted the opinion of the district court).
The Circuit Court Appeals have issued opinions in the Tenth Circuit (cases from Utah and Oklahoma), in the Fourth Circuit (from Virginia), and in the Seventh Circuit (cases from Wisconsin and Indiana), and in all cases upholding decisions that state bans are unconstitutional. Crucially, in all these cases, officials from the state are defending the ban, distinguishing them from the situation in California.
The Supreme Court may now decide to take any one or all of these cases. If they choose not to hear those cases this term, then the circuit court decisions will stand, and marriage will be extended in those states, and nearly immediately in other states in those districts. However, the supreme court may wish to wait until there is a circuit split, i.e. when there are conflicting interpretations of the constitution from different circuit courts. It remains possible that appeals in other circuits will find in favour of the constitutionality of state bans; this seems quite likely to be the outcome in the Sixth Circuit, where Judge Jeffrey Sutton was quite skeptical of the merits of the constitutional case for equal marriage at oral argument in cases from Michigan, Kentucky, Tennessee and Ohio. If this occurs, it is almost certain that they will be heard this year.
While those of us following the developments will wait eagerly to hear from the court today, I wouldn’t be holding my breath. In 2013, I tuned in on a weekly basis to whether they would take the Perry case, and which DOMA case they would consider; it was not until 7 December that this information was revealed.
Which still means that before Christmas, we should expect to know of a date in the spring when the Supreme Court will hear cases relating to the constitutionality of bans across the whole United States, with an opinion in June. I will of course return to this, to outline in clear terms why I believe they both should and will find that there is a constitutional right for couples of the same sex to marry, throughout the United States.