Richard has responded to
this post – the response is long but you should read it. In the interests of readability I’m going to (try to) keep mine shorter. In the truest traditions of grown up debate I have suggested by email to keep the bitchy swipes to one side, so sorry to everyone I know was enjoying them!! ;) I’m sure Richard will agree – this can be a good debate and I hope it stays that way. (Let me say I take some responsibility for starting the bitchiness but God he made me angry)
First a few quick remarks, then the rebuttal:
1. I do find calling women hysterical when they get angry or upset or emotional about something misogynistic. The extract RW highlighted to justify that (“We may not execute gay people like some other countries but there are more ways to kill a person than through the actions of a hangman”) was not, as he suggested, designed to compare the lack of gay marriage to hanging, but highlighting that one’s soul can be executed as well as one’s body. I believe that when the State rejects your identity and, not only that, but treats you differently because of it, they execute your soul.
2. I know why your friends would be amused – the world of university debating is small and gossipy remember. It just struck me that you needed some reminding of a lot of people’s realities.
3. Indeed I do know that you’re studying sovereignty in political theory but ‘human dignity’ is important in terms of our constitution’s natural law philosophy. I never suggested that human dignity didn’t exist as a theory before 1937, I merely made that the point that if I’m making a human rights argument and you scoff at it because I base on the notion of human dignity then you’re scoffing at the entire human rights movement and the underlying philosophy of the fundamental rights within our constitution. (BTW the abortion dig wasn’t appreciated).
4. I
do not “approach the issue at hand from behind a desk in Griffith College’s Law Department” –
I write everything on my blog in a personal capacity, as I’m sure RW does. (Just in the interests of absolute clarity).
5. You may not have made expressly legal arguments (apart from saying that partnerships should be regulated by contracts….) however I do not see the utility in discussing this is in the absence of a workable model. People are suffering because of these discriminatory laws every day – the time for purely philosophical discussion has surely passed?
The RebuttalIn the interests of readability I’m going to separate the debate into themes and deal with it that way.
Is differential treatment based on sexual orientation a value judgement?
The first substantive question is whether, by treating queers differently and, in particular, treating queer families differently, the State is making some kind of value judgment. I’m sorry but I have to stray into legal stuff here to explain my position.
In Ireland we have a hierarchy of families and family forms – marriage is at the top with constitutional protection, opposite-sex cohabiting couples are next with substantial legislative protections but no constitutional protections, and same-sex couples are next with lesser legislative protections and no constitutional protections. Does this mean that the State is making some kind of value judgment? I think so. It means that the State believes that the family based on marriage deserves more protections than other families and, as a result, is superior in some ways to other family forms.
All families face the same difficulties and require the same protections and, in the absence of some objective justifications for doing otherwise, the State is discriminating against people if they do not acknowledge and serve those needs. Let’s take the example of the Residential Tenancies Act 2004 to illustrate the point. For the sake of convenience I’m going to quote from my upcoming article in the
Irish Journal of Family Law:
What then is the Governmental justification for treating these couples differently? The answer to this can be clearly discerned by reference to the Oireachtas debates that led to the introduction of the Residential Tenancies Act 2004, part IV of which provides for new security-of-tenure protections in Irish law. Section 49 provides that the security-of-tenure provision will automatically apply to “family member” multiple tenants once they have been in occupation for six months. Section 39 describes those family members as spouses, children (natural, step, adopted or fostered), and unmarried partners “who cohabited with the tenant as husband and wife in the dwelling” for six months preceding the death (emphasis added) and therefore expressly excludes same-sex cohabiting couples from this protection. When challenged on this matter, Minister of State at the Department of the Environment, Heritage and Local Government, Noel Ahern stated: “[t]he amendments provide for security in the case of established, family-type relationships, rather than homosexual or other relationships”(Dáil Debates, July 1, 2004, p.1043. ) —the implication, of course, being that such “others” cannot form family relationships.
Richard says that
[U]ntil the government of the day starts to justify the present distinction on the grounds that same-sex relationships are less meaningful, legitimate, or worthy, it is not true that the separate arrangements for relationships between one man and one woman constitute anything more than an instrumental view that this is in the best interest children and social stability.
I think the simple example of the RTA 2004 proves that they have done so. Let me also say that I believe the lack of persuasive reasoning in the All Party Oireachtas report and in addresses by the Minister for Justice and the Taoiseach on this area further show this value judgement. Generally speaking conflicting positions are laid out and, without reasoning (beyond ‘a referendum would be divisive’) the conclusion is drawn that there should not be marriage. Now, maybe I’m wrong about this but the lack of presentation of a persuasive, objective, reasonable argument tends to suggest that such an argument doesn't exist and that conclusions are actually based on a belief, which I believe must be acknowledged as a normative one, that opposite-sex couples are better than same-sex couples.
On all of Richard’s points on whether the privileging of marriage is based on a belief that it promotes “the optimal environment for children and secondly, promoting socal stability (through making marriage difficult to walk away from” let me firstly say that I believe these beliefs are homophobic.
On social stability, I believe that families are the basic unit of society and that they are vital for social stability. I do not, however, believe that privileging marriage contributes to social stability. It may be difficult to get a divorce in Ireland but it’s not impossible to do so and it’s also not difficult to walk away from a marriage – people do so all the time and, through separation agreements or judicial separations, can give up most of the legislative rights that flow to the marital family. That was equally the case before the Family Law (Divorce) Act 1996. However, even if I were to accept that protecting marriage (as opposed to families) is essential for social stability then I still don’t understand why this means that same-sex couples are less deserving of that. Can’t we also form long-term loving stable relationships? Can’t we also, if you want to think about it this way, contribute to social stability by protecting those partnerships from undue state interference (which is basically what constitutional protection does)?
As for children, the current situation results in children born and/or raised outside of marriage suffering de facto discrimination through the lack of protection of their family. Let me add something else about children (again quoted from forthcoming article):
Second, same-sex couples are entitled to foster children. If we perpetuate a situation whereby same-sex couples can foster but not adopt children, we maintain an exceptionally distasteful implication within our laws: same-sex couples are only capable of giving emergency care to damaged or troubled children. This not only suggests that same-sex parents are a lesser calibre of caregiver, but also that foster children are a lesser calibre of child. This situation would clearly not have the best interests of the child at heart.
Again: value judgment
Does the State’s position cause/implicitly justify homophobia?
It should be clear by now that I believe the State's position to constitute homphobia, whatever about causing or justifying it.
Richard is right in saying that “[n]obody is locked up for being in a gay relationship and the liberty of Irish people to live lives as gay people is evidenced by the thousands doing so”. However those people who do so suffer legal discrimination in the areas of adoption and other parenting provisions, succession, taxation, domestic violence, family home protection, parental leave etc… I don’t think saying ‘yes you can do as you wish but you wont get the same respect for your partnership from the state as straight people’ constitutes allowing people to truly live freely: it constitutes punishing them for doing so.
It is not the State’s fault that homophobia exists – of course not – and my argument is not that the lack of gay marriage causes homophobia. It is that the differential and discriminatory treatment by the State of gay partnerships constitutes a lack of leadership in the area of equality and, as a result, makes feelings of differential worth acceptable in society. It doesn’t mean they cause them – just that the position implicitly justifies them.
RW says that laws should be made on the basis of whether they are right or wrong, not based on whether people want them. With the respect I disagree: laws should be made on the basis that (1) they are necessary, (2) they are proportionate to the objective desired, (3) they comply with the State’s constitutional and international obligations and (4) they impinge as little as possible on others’ rights. On all of those points there is no objective justification for failing to introduce gay marriage.
On the question of decriminalization and social change, which Richard also brings up, in 1993 Maire Geoghan Quinn was strong in her comments at the time of decriminalization but it came against some substantive opposition didn’t it? Including, for example, opposition from the Supreme Court in the Norris judgment. I very much doubt that Richard believes that decriminalization has does nothing to change social attitudes towards homosexuality; I believe it has. Here the State was forced to take action (by the European Court of Human Rights) as opposed to taking leadership and that may well have impacted on the strength of the action but nevertheless it made a difference.
Should the State lead public opinion?
I think in many ways that this is crux of the disagreement that Richard and I are having. Let me say this: I believe that the State does have a role in social reform and furthermore I believe that law plays an important role in that project.
Richard says:
I disagree on principle that the state should lead public opinion and frankly find the idea of my taxes being used to tell me what to think patronizing and sinister.
I’m sorry but I think this is really ridiculous. On this line of thinking the State should never tell us drinking and driving is wrong and dangerous and you shouldn’t do it; it should never say smoking damages those around you and you shouldn’t subject people to that harm in the workplace; it shouldn’t say all children are equal and you should treat them as such whether they’re born in marriage or not; it should never say people shouldn’t have sex with those under a certain age; it should never say abortion is illegal; it shouldn’t say
anything at all that regulates how we behave.
I believe that part of the State’s responsibility is to assess whether it is fulfilling its obligation to treat all people equally,
i.e. according to their needs without prejudice on the basis of any ascribed characteristic or any characteristic so central to one’s identity that they should not be forced to abandon it. It is also a part of the State’s responsibility to lead us in this project of spreading and ensuring at the least tolerance and, ideally, reverence for difference in society.
One way in which the State can do that is by LEADING and not, as Ireland is doing, waiting to be pushed by the EU or the ECHR into providing equal rights and saying ‘listen the EU/ECHR is telling us we have to do it…we’ve no choice left’. That’s not leadership – that’s looking for a way of doing something unpopular in a manner that least damages its election prospects. We need a government that is ready to stand up and say ‘this is not right; everybody is equal and we are going to ensure that they are treated as such’. We could equally have a judiciary that would do so and I do hope that our Supreme Court will do so at the earliest possible stage.
The state led social change in this country in many ways. Think back to the Supreme Court bench of cases like
McGee where huge swathes of prejudicial and normative laws were swept aside in the name of personal freedom to make decisions for yourself and the obligation of the State to respect and recognise those decisions. What I wouldn’t give for those judges on our bench in the coming months.
What about the impact of State attitude as shown through legislative action or stagnation? Richard says:
Fiona makes no attempt to argue why someone would be right in feeling better or worse about themselves on the basis of what the state thinks or doesn't of them, so I'll take the point as conceded.
Now it’s not about whether someone is “right” in feeling a certain way about themselves but whether it is correct to say that state attitudes can have an impact on how someone feels about themselves. I think it is correct to say so. Our state basically says, for example, that ‘queers don’t form families or at least not families that we think are worthy protecting. They form couples and I suppose now and again they stay together long enough to deserve some kind of a tax break in the hope that they will go away and stop asking for things’. This attitude reduces queer families to the same kind of status as a business. Are you saying that this doesn’t have any effect on how some people feel about themselves? I’m sorry – I just think your position on this misunderstands how the State can influence social opinion can influence how individuals within society feel about themselves. Point not conceded…
The Inherent Dignity of All
Being a good liberal, Fiona takes it as a given that the inherent dignity of human beings was created in 1937 when the Irish constitution was ratified. Otherwise, why would she have required me to have meant that the constitution was where we look for guidance on what it means to say that human beings have "inherent dignity"?
I’ve already dealt with this but just to reiterate that the point was that this is the underlying philosophy of rights protections in the Constitution and the international human rights movement generally, therefore must be referred to in any discussions about legal protections.
Even if we go with the Irish constitution or, say, the UNCHR, it's not exactly obvious to me that gay marraige was what de Valera had in mind when including the idea in the constitution. The same goes for the signatories of the UNCHR. So while it's quite true that the designers of each regarded inherent dignity as the "essential foundation of the concept of rights and of equality" it's not clear that they regarded "the concept of rights and of equality" as implying gay marraige. For that, you have to step outside the intentions and the explicit provisions of both documents.
Yes, you do, because constitutions and founding international treaties are not supposed to stagnate – they are supposed to grow with their constituency. They are living, breathing documents and in that way they retain their relevance for the society they are underpinning. I do not believe in historical interpretation in constitutional law: it’s ridiculous. If we are to be governed by what de Valera meant or what people meant when they voted for the Constitution then we may as well either live as if it’s 1937 or make a new Constitution for every generation.
Which, of course, puts you back at my starting point, which is the view that the question of what is implied by the intuition that all people have an "inherent dignity" is ultimately settled politically or philosophically, rather than legally, the latter following the first two, both practically and in order of precedence.
As is clear from above I disagree with the basic premise of this statement.
Richard wants me to respond to this paragraph:
Just as it's not for the state to "recognize" or be "proud" of heterosexuality or homosexuality, it's not for the state to pronounce that gambling is right or wrong, that eating too much good or bad, sleeping around immoral or ok, or that worshiping Allah puts you in God's favour or simply has you barking up the wrong tree. The only thing that counts, at the level of politics, is that people are free to live their own lives without the government trying to do it for them, or actively impeding them. I don't see how failing to take pride in a gay relationship effects any concrete harm to any such two people so long as none of their freedoms, not least the freedom to live together, are taken away. Freedom, not a pat on the back, is what counts.
You see here’s the thing Richard – we have completely different views of the role of the State. I believe, as I said above, that the State does have a role in forming society as well as in ensuring that all in society have the freedom to try to change it and change attitudes within it. There are fundamental matters of equality that I believe the State has an obligation to advance or, at least, to lead on them and then allow the people to decide upon.
I don’t believe in big individual freedom and small government. I believe that big government can give rise to big freedom. I believe that small government does not allow for big individual freedom because it fundamentally misunderstands freedom.
How can you be free if you don’t have food, clothes, a home, health care? How can you be free if there are no laws there to vindicate your basic rights (you’re right in saying rights are inherent but they need laws to vindicate and protect them: not give them)? How can you be free if those you love are jeopardized as a result of the nature of your love? That’s not freedom Richard; that’s not governance. That, to my mind, is the worst form of state abrogation of its responsibilities.
Richard you say you don’t want the State telling you what to think or making decisions about what kind of families are better. My point is they already do, and they relegate many of us to a lesser place.