Way to Go, Ireland

They’re still doing the counting but everyone knows how it’s going to go: Ireland is going to have marriage equality, and be the first country to have it via popular vote. And to be clear, it looks like the vote isn’t going to be close; it’ll be on the order of 2:1 saying “yes.” That’s a lovely thing, it is.

Some of my forebears are Irish, so I feel it is all right for me to feel some pride in Ireland and its people making this call for equality. If I drank, I would raise a pint of Guinness to them. I may do that anyway, and then give the pint over to Krissy, who will take it from there.

In any event. Well done, Ireland. Well done indeed.

72 Comments on “Way to Go, Ireland”

  1. Ah, faith and begorrey, tis a fine thing indeed, so it is. Now Father Ted and Father Dougal can finally make it legal.

    I`m another member of the diaspora, having been born in Liverpool, the capital of Ireland.

  2. Yep despite the well funded (from outside Ireland) FUD campaign of the last couple of weeks, with it’s mix of nonsense, red herrings and outright lies, the amendment will surely pass.
    Even Donegal may vote YES for once.
    Also the other amendment will probably fail.
    FYI try http://www.rte.ie/news/2015/0523/703207-live-count/ for more details.

  3. Now, why could we not do that in the U.S. rather than waiting for the Supreme Court to make it so which carries a lot less respect (think Roe vs Wade).

  4. Gary Willis:

    Among other very cogent reasons, because we don’t have an apparatus for national referendums short of amending the US Constitution, which is a process utterly unlike the referendum process in Ireland?

    Or, were you just being facetious?

  5. @Gary: Probably because if we did it by popular vote it’d still end up going to the Supreme Court anyway. Also because we haven’t really got a mechanism for a popular vote for national-scale laws, which is perhaps just as well overall.

  6. Bravo for the Irish!

    When I came out, it was very traumatic and risky. I hoped things would change for the better, for the sake of all the young people who lived in fear. I did not expect them to change so fast that I would myself enjoy some benefit. But they have.

    One grain of sand at a time, we can move the mountains of the world.

  7. The one upside of being awakened by my neighbor’s 2:00am (California time) party was following #MarRef on Twitter as the vote count came in. So much joy and love in people’s responses – It was beautiful.

  8. Now, why could we not do that in the U.S. rather than waiting for the Supreme Court to make it so which carries a lot less respect (think Roe vs Wade).

    Because having popular votes on inalienable human rights is a bad idea?

    (Still, for all that: well done, Ireland)

  9. Of course, this means you’re going to see Irish people marrying leprechaun dogs next, you mark my words.

    I’m off to double-check the strength of my own marriage bonds. I’m told this sort of thing weakens them. I’m not sure how, though I am pretty sure my wife will be disappointed when I tell her that no, we can’t get a leprechaun dog.

  10. My wife was born and raised in Dublin. We own property there. I spent six years working for an Irish firm. We are looking to buy land to retire to over there right now. I know dozens and dozens of Irish people. To a one, they all heavily supported this bill. I had very little doubt it would pass.

  11. Well done, Ireland indeed!

    It’s remarkable for many reasons; one of them is the role of social media in getting the vote out in an unprecedented manner. A few days ago it looked as if it might be going pear shaped, but the Irish diaspora rallied and ‘coming home to vote’ became a battle cry that moved hearts and minds beyond the numbers of those who managed to make it.

    It’s been a roller coaster ride, but appealing to love, not hate, has achieved things which looked impossible. It’s also been a wonderful corrective to the venom and vitriol which has seemed so prevalent recently on the Web; well done, Ireland!

  12. (think Roe vs Wade)

    You mean Loving v. Virginia, Garry. Since that was the last time the Supreme Court overturned a restrictive marriage law rather than waiting for the popular vote to do so. I assume you feel similarly about SCOTUS’ judicial activism in that case?

    Way to go, Ireland!

  13. Go maire sibh bhur saol nua!

    Very well done, indeed, Isle of Erin!

  14. For what it’s worth, the present wording of the sections of the Irish Constitution dealing with marriage actually makes no reference to the sex of those participants, it’s just that it’s always been interpreted as referring to the opposite sex. This amendment will introduce explicit wording stating that a marriage may be contracted between two adults regardless of biological sex.

  15. No, John, merely wishful thinking on my part. I know we have no mechanism for national referendums.

    Mythago, I am good with the Supreme Court interpreting existing law and constitutional language. I mentioned Roe versus Wade thinking more of the long term division it has created among the nation; I was not trying to cite a precedent touching on marriage issues. By the way, your comments here at Whatever have been impressive to me. Keep it up.

    David, the whole debate comes down to who decides which rights are, in fact, inalienable. I understand that the non-heterosexual community thinks the right to marry is inalienable. Thinking it so does not make it so. I am far more comfortable with the legislative process deciding what is inalienable than the judiciary doing so. Were we able to do national referendums in the U.S. I would be even more comfortable with that. And yes, I understand that legislation or referendums can make decisions that some may not agree with. But changing hearts and minds of the citizenry of the nation seems to me the best way to achieve social justice or any other important goal. On the marriage of gays issue we seem well on the way in the U.S. of doing just that. When the court rules legalizing gay marriage in June (more likely than not), we may well see the same dissension for decades to come as we saw with Roe versus Wade.

  16. I mentioned Roe versus Wade thinking more of the long term division it has created among the nation

    Yes, I know why you mentioned Roe. And I mentioned Loving to point out that if we’re going to go down the hand-wringing path of ‘shouldn’t we let The People decide instead of having courts decide for them’ route, then the best comparison would be to, say, a previous SCOTUS decision overturning a restrictive marriage law well before The People wanted to do so.

    I mean, if we’re going to consider whether court decisions are a bad way to go about these things, then shouldn’t we be looking at Loving and whether it created ‘long term division’ in the US, in order to predict whether a similar decision on same-sex marriage would create division etc.? Otherwise, you’re just cherry-picking an unrelated hot button social issue as evidence that it’s a bad idea for contentious social issues to be resolved in any way other than popular votes.

    (Let’s not even get into the fiction that Roe *created* a division of opinion on abortion.)

  17. Wh00t! Now that’s how you do it, America!

    Of course, here the only people who bother to vote are Very Old Religious Conservatives. I’m an Election Inspector, and what pisses me off more than anything is How Few People Under the Age of Sixty Bother To Vote in most elections. Unless it’s a Presidential election, and the Democratic Presidential Candidate’s able to electrify younger voters (whatever you can say about Obama, he can sure do that!), Election Day looks like Bingo Night at the Senior Center….

    The median age of Election Inspectors is even worse – I’ll be Sixty myself in a year and a half, and I’m consistently the youngest person working elections by at least a decade. There are a lot of local and state elections this year in the US, and the Board of Elections in NY State where I live is begging for Election Inspectors – and from what I hear, we’re far from the only state in that fix! So I’m going to risk being moderated, and ask everybody in the US who’s politically active to volunteer as an Election Inspector – you can find your state’s Board of Elections here, and ask them if they still need Inspectors, and if they’re still offering Inspector classes (NY still is and will be for the next month or so).

  18. Wow, I would not have expected that, as I’ve always thought Ireland was a very socially conservative and religious country.

    It’s good to see it coming up progressive on marriage equality, though, and it makes me even more ashamed of my own country’s foot dragging.

  19. Catamara the reason for the referendum is mainly the risk of a lengthy delay due to a court challenge.

  20. @Gary Willis–“Now, why could we not do that in the U.S. rather than waiting for the Supreme Court to make it so which carries a lot less respect (think Roe vs Wade).”

    I think one of the questions should be who is creating this atmosphere that the Supreme Court deserves less respect for basically doing what it’s Constitutionally supposed to and why?

  21. Ireland was a very socially conservative and religious country.

    It is a *genuinely* conservative country, where the first tenant of that conservatism is “You mind your business and I’ll mind mine, and we will all try to take care of each other generally.” That is in direct opposition to the phony conservatism you see in America, which is really just a bunch of big government authoritarians calling themselves “conservative.” Their first tenant is “Guns. And I want to be all up in your business. And don’t forget guns.”

    The Roman Catholic Church has been unhappy with the Irish Catholics since the 7th century. It is one of the few places on Earth where the culture over-ran the church, and not the other way around.

  22. David, the whole debate comes down to who decides which rights are, in fact, inalienable.

    Actually, the whole debate comes down to the fact that you don’t have people vote on whether everyone gets their inalienable rights because (unfortunately) people have shown a distressing tendency to decide that very few people deserve rights: women, minorities are just the most obvious examples.

    “Life, liberty and the pursuit of happiness” is not up for a vote.

  23. Thank you, Mr. Scalzi. Two to one sounds good. I was concerned it might be tighter.

    Peter, your wife will find leprechaun dogs at the end of the rainbow. Hetero ones at the right end and gay ones at the left end. But she can’t marry one without divorcing you first.

  24. David

    In this instance, however, people have shown a distressing tendency to believe that all people have rights; I’m not clear as to why you believe that this is, in some way, a bad thing.

    After all, from an outsider’s perspective the right to life, liberty and the pursuit of happiness does not appear to apply to US citizens as a whole; the death penalty for the offence of existing whilst being black does not have a counterpart in Ireland, nor the UK…

  25. In this instance, however, people have shown a distressing tendency to believe that all people have rights; I’m not clear as to why you believe that this is, in some way, a bad thing.

    Note the part of my original post where I lauded the decision that the Irish people had made. But what happens if they change their mind? You comfortable with regular votes on which people get which rights? Next week, American southerners vote to disenfranchise African-Americans? You comfortable with putting your rights up to a vote?

    That’s my point.

    After all, from an outsider’s perspective the right to life, liberty and the pursuit of happiness does not appear to apply to US citizens as a whole; the death penalty for the offence of existing whilst being black does not have a counterpart in Ireland, nor the UK…

    Which, while true, has exactly nothing to do with my point. African-Americans have the right to life, liberty, and the pursuit of happiness. That the United States is violating that right is a *bad thing.* They would still be violating that right if the people of the United States voted to continue doing it (and said people have regularly voted to do exactly that. Witness segregation). Voters don’t get to decide whether someone has an inalienable right; they just get to vote whether to continue violating it or not. That the Irish voted to stop violating someone else’s right is a wonderful thing; that they were violating it in the first place is not.

    But (as Gary Willis did above and what I was reacting to) saying that national referendums gave more legitimacy to those rights is silly.

  26. Oh, and when the Irish stop violating a woman’s right to control her own body (e.g. abortion), let me know.

  27. Timeliebe–

    Where I grew up, the people who turned out to vote included old religious conservations, old religious liberals, old New Deal Democrats, and old atheist socialists. That is, the correlation was with age, not political position. (I agree that this is a problem, but a slightly different shape than you’re assuming.) As for the age of election inspectors, the last I looked New York State was offering approximately minimum wage for a job that required something like a sixteen-hour workday*, on a Tuesday–so if you’ve already got a paid job, you almost certainly couldn’t do this as well.

    *I approve of the polls being open long hours, but why do they insist on having every inspector work from before the 6 a.m. opening all the way through to the 9 p.m. closing, or later if anyone is still on line at 9? If they offered a choice of a 5:30 a.m-1 p.m shift or a 12:30 p.m.-closing one, I might have been willing.

  28. David

    Whilst I am not happy with abortion laws in Ireland, Irish citizens are free to travel the short distance to England which does have abortion laws which enable much more access to terminations than the US, and to travel somewhat further to other EU countries which also enable much more access to terminations than the US. Again, I’m not sure what point you are trying to make here.

    Equally, you cannot rationally argue that someone possesses a right when that right doesn’t actually exist because it cannot be exercised. Claiming that African Americans possess rights in accordance with your constitution is meaningless if, in reality, those rights don’t exist. Quite the contrary; it’s a really efficient way of ensuring that African Americans will never gain those rights because, according to you, they’ve got them already, and therefore there’s nothing to strive for.

    It’s a magnificent example of Catch 22, but it is, in my view, a lousy way to treat human beings…

  29. timliebe: Either having Election Day be a paid national holiday or implementing national vot-by-mail would do a lot to correct the over-representation of over-65s in non-presidential elections. Being from Oregon, I’m in favor of vote-by-mail myself.

  30. Congratulations to the Irish people, and may any other country with the ability and courage to do so follow their example! (looks HARD at the Australian government)

  31. 1993 – Ireland lifts ban on homosexual relations.

    2010 – Civil partnerships in S. Ireland legalized.


    For non-Irish people, (and those worried about Democracy and majority rule of Law and those types of things) this isn’t some sea change from benighted dark ages to modernity (like, say, Russia in 1723 when slavery was outright banned by Peter the Great), but merely a public (and joyous! DUBLIN IS CRAIC TONIGHT! weeee!) statement that the society agrees with the change.

    It changes things a bit (legal equivalence), but the Law was already in place.

    The real take away from all of this is that the current Pope is very much aware of the way in which minds have changed and is desperately getting up to speed, and you’ll probably see more changes in the Catholic Hierarchy due to it.

    Oh, and Sweden won the Eurovision Song Contest, it’s all rainbows and drunk Leprechauns tonight.


    (As a plus: if the Catholic Church with it’s vision of centuries can see that change so fast, hold on America, you ain’t seen nothing yet).

  32. In fairness I must point out that the 1993 decriminalisation of homosexuality was forced on Ireland by the ECHR ruling. It was not a popular change, and it’s untrue to regard it so.

    But Ireland has changed greatly, not least as a result of the inquiries into physical and sexual abuse by the Church; those inquiries were hell for the people who went through them.

    Nor was the referendum a foregone conclusion; it had to be fought for, and fought hard. I’m really glad that Yes won, but seeing it as some sort of historical destiny thing is, in my view, a total misreading of the facts…

  33. Stevie, the entirety of the Enlightenment, John Locke, Thomas Paine, Thomas Jefferson, and all of the Founding Fathers would like to have a word with you about natural and inalienable rights. Once you’ve had a chat with them, we can resume this conversation.

  34. “…as evidence that it’s a bad idea for contentious social issues to be resolved in any way other than popular votes.”

    Mythago, I thought I typed that legislative action (or referendums if allowable) are preferable to court action, not that the court doing its job is a bad idea. I was expressing a preference for the will of the majority over the action of the few judges. I was really trying to make the point that social justice requires changing the hearts and minds of the general population in the direction of social justice. Otherwise you get a Dredd Scott decision followed by 75 years of statutory segregation. I have no problem with the Loving case being viewed (in preference to Roe)as you suggest for this thread topic. I sure don’t recall the fallout from Loving being near as severe. The general population came around sooner than later to accepting that decision. If the court rules gays can marry in June, I rather expect the nation will come around sooner than later as now over half accept the idea.

    “Actually, the whole debate comes down to the fact that you don’t have people vote on whether everyone gets their inalienable right.”

    David, your statement assumes the pre-existence of the inalienable right. You totally missed my point that thinking an inalienable right exists does not make it exist. Some people would be tremendously happy to never work and successfully rob banks to support a lavish lifestyle. That would be their “pursuit of happiness.” Yet our laws say robbing banks is a crime and no inalienable right exists to pursue happiness robbing banks. [I am not, not, not making any linkage of bank robbing to being gay!] What I am suggesting is that the definition of inalienable rights is not written in stone somewhere. The definition of inalienable rights is hashed out in the conversations we have together as a nation and ultimately the definition is a national consensus of what they are and are not. I simply prefer that national conversation determine the definition rather than a court. But I am good with the court on occasion jumping in and refining (changing) the definition. The repeal of Dredd Scott was a good thing. The finding of Brown versus the Board of Education of Topeka, Kansas was a good thing.

  35. I’m really glad that Yes won, but seeing it as some sort of historical destiny thing is, in my view, a total misreading of the facts…

    I understand your viewpoint, but I would politely suggest you don’t know how these things work.

    The 1993 law got a lot of push-back. The 2010 law got some push-back.

    There’s a reason the 1993 Law didn’t “have a choice“, it’s because there were some heavy-set corrupt bastards in power. If you want to play “I’ve got balls and know how things work“, I’d urge you to look at various USA Corporations looking to use Ireland – Holland as the “double Dutch” and needing to have both neutral to US viewpoints. *ahem* Let’s just say, there’s a reason the Banks in Ireland in 2008 were so corrupt.

    Still – this is is about the people, and:

    It was then put to the test. 60-70% says it sits well with the population.

    The referendum was merely about legalities – the 2010 law on Civil Partnerships is an ironclad defense of recognizing LGBT* rights, this referendum is merely about the weird Constitutional Laws that the Republic of Ireland has (I suggest you look it up, that’s why each county is listed) and some minor legalities (insurance, inheritance, etc, go look it up). Sure, there was a lot of pageantry and money spent, but our kind knew what would happen.

    But sure: I’m happy to act like an adult and actually discuss geopolitical Law and power with you. But I’m so very tired of not being able to tell you the truth it might get messy.


  36. This is a family issue for me. I’ve not heard one word from my other half about how things turned out, but I know her dad must be upset, although for the most part he is a pretty damn decent guy!* As for the Female half and her mother, I’m not sure how they would have voted were they still living in Ireland. You would think that Mama would vote against equality because she used to be a nun, but I’ve learned that that ain’t always how she will go.

    As for the other half, she has always been a live and let live kind even though there are things she disagrees with.. I would hope that she would vote “FOR”.. I know I would have if I were allowed to vote. In the end though, I find that it doesn’t matter how they all think, I’m just happy for the people in Ireland who can now go about their own lives and be equal.

    *I admire a guy who can go through months of radiation for prostate cancer, having both knees replaced, and having a pacemaker installed.. but not letting any of that affect his golf game.. and not using a cart!.

  37. Also, as some politicians of either leaning have found out, it is amazing how having a cat in the dog fight can change how you feel about a situation. Whilst I have Irish ancestry, the goings and comings of Ireland didn’t bother me, until I found myself inextricably tied to Ireland because of people I love.

  38. David

    I was educated in a school founded by radical feminists in the 19th century as part of the changes brought about by the Enlightenment; It was the bedrock of everything taught to me.

    Frankly, I don’t think you have a clue as to what the Enlightment was about, and your petty little jibes demonstrate, only too well, the fact that you are profoundly ignorant of what it was about.

    Ignorance can be fixed; stupidity not so much. I’m not optimistic about you bothering to do the work which would get you up to speed…

  39. @Gary Willis: In fact, Loving was pretty controversial. As xkcd relates, interracial marriage did not have majority approval in the US populace until 1995, nearly three decades after the decision in Loving. Same-sex marriage, though, as you observe, already has majority support in the US.


    Of course, I don’t support a dictatorship of the majority in any case; that’s why the US has fundamental rights, as well as its various checks and balances. (We can argue about how effective those all have proven to be, but i definitely think they’re better than nothing.) But in this case, at this point, a SCOTUS decision in favor of same-sex marriage would seem to be fully in line with “the will of the people”, which hardly leaves a great deal of room for controversy. (Though I’m sure the usual suspects will try to make it controversial.) :)

  40. Oh, and sorry for the double post, but I forgot to say: congrats to Ireland and all its people! You are an inspiration to us all.

  41. Dear Gary,

    You’re simply wrong about acceptance of interracial marriage. You can look this data up yourself if you don’t believe the XKCD graph (which is factually correct). It is even more instructive (as in, horrifying) if you look up state-by-state polls and how long it would take to get uniform interracial marriage across the country.

    It is very easy and convenient to decide that waiting for popular consensus is preferable when it is not YOUR rights that are being waited for.

    Based on how SCOTUS and various state’s courts handled interracial marriage, the courts should have legalized same-sex marriage decades ago. To suggest they they are now acting imprudently when, by historical standards, they are remarkably tardy is laughable.

    pax / Ctein

  42. Just to clarify – this wasn’t a vote on the law. The Irish people don’t get to vote to change the the law. It was a vote to change the *constitution* and how it defined marriage. A small, but important, distinction.

    Also, Stevie: while Irish women can certainly travel the ‘short’ way to England, an abortion is not simply a matter of showing up and spreading your legs for the coathanger. Abortion is regulated in the UK, can only be carried out in the first 24 week, and requires 2 doctors to agree the procedure is being performed for the reasons outlined by the law. So in addition to that ‘short’ trip, the Irish woman will need hotel accommodation. She will need to take holiday from work or, if she is a full-time mammy, organise care for any existing children. She will need to find the money for the trip. She may have to go alone.

    She will find it difficult to access appropriate follow-up medical care back in Ireland, not simply because of the stigma of going to her doctor and explaining she’s chosen to terminate a pregnancy, but because doctors here would rather let a woman die than perform a termination.

    But of course, it is entirely reasonable that a woman in 2015 should have to travel to a foreign country in order to control what happens to her body.

  43. Re: Ireland’s conservatism. Yes it is but the Catholic church has lost a lot of moral credibility over the last two decades. I f you think the scandals are bad here; they are way worse in Ireland money, sex, abuse…
    And if you start looking at the few passages in the Bible that are used against gay marriage; you find that they are more likely to be against sexual immorality in general, or sex used as a religious rite, or sex with minors or others unable to give consent. Now their is some disagreement about this but refusing to allow that their is disagreement means your head is somewhere dark and slimy.

  44. It’s interesting how often the “preferrable” way of getting things done in the US changes, such that it’s rarely the way it happens to have been done.

    The US Constitution is pretty clear that one of the duties — not just ability, but *duty* — of the judicial system is to make the sorts of decisions that are dishonestly described as “judicial activism”.

    Anyway, hats off to Ireland for getting it done the way they happened to do it. I’ve a bottle of Guiness that I’ve been saving for an occasion, and this is as good an excuse as any and better than most.

  45. Bearpaw; Guiness always is a special occasion. Sorry:) I went off topic. Thinking of Guiness will do that to me.

  46. ctien–I bow to the facts you provide on Loving.

    I am not laughing at all. You type “the courts should have legalized same-sex marriage decades ago.” No. Judicial review since Marbury versus Madison has served us well. But the decision never granted the court the right to make new law. The court can only interpret existing law under our Constitution. Laws in many states are unambiguously clear that marriage is heterosexual. Ruling for same-sex marriage is making new law, something the courts are not constitutionally permitted to do. But courts do make new law and the rest of us go along with the unconstitutionally made new law out of respect for the courts. The day could come a President might simply justifiably refuse to enforce a ruling of the supreme court on the basis it made new law. That said, I fully expect the court to rule in June in favor of same-sex marriage and also for the rest of us to go along with the decision. Fine by me; I have no complaint with same-sex marriage.

    Side point. The right to same-sex marriage nationally does not yet exist, though many think it does on “equal protection of the laws” reasoning. The right will come into existence nationally when the court rules so in June. Most forget that “equal protection of the laws” only covers then existing laws, not the newly created unconstitutional laws that result from some court rulings. Then the court made unconstitutional laws morph into constitutional law and precedent when we as a nation accept them out of respect for the courts. We seen this in our judicial history many times: court made unconstitutional law morph into constitutional law and precedent by subsequent national acceptance of the ruling.

  47. Ruling for same-sex marriage is making new law

    It is not, any more than “ruling for” interracial marriage in Loving made new law. Striking down an unconstitutional provision of a law is not “making new law”, unless you are changing your views and joining the tiny ranks of extremists who think Marbury was an unconstitutional power grab?

    Perhaps I am misremembering, Gary, but I am pretty sure you were around for the extensive discussions here on Whatever during the actual court rulings as to what was going on legally and why the rulings came out the way they did, and should know this. If you weren’t or you don’t, then please familiarize yourself with what the courts were actually doing, because this judicial activism hobbyhorse is fucking tiresome.

  48. mythago
    I am not typing about judicial activism. Until the Loving ruling there was no inalienable right to an interracial marriage. With the ruling the right was unconstitutionally created and then accepted as constitutional. Marby versus Madison gives the right to judicial review of an existing law. It does not grant the power to make a nation-wide in scope new law. To view Marby versus Madison as you view it seems to me to be declaring the Supreme Court superior to both the Legislative and Executive branches. The Constitution created three equal branches, emphasis on equal, not one superior and two subordinate branches. Your view would be the judicial activist view,I think, not my view.

  49. I blame Huckleberry for the Obama presidency. If he hadn’t de-railed Romney in ’08 (throwing the GOP nomination to McCain) Romney would have beaten Obama handily. 4 years later, far harder to unseat an incumbent President. So Huckleberry cost his party 8 years out and the biggest-ever advance of socialism in the US.

  50. And anyway, Huck’s sole function now is to ensure the anti-gay plank (aka suicide pill) is built into the GOP platform next year. I wonder if he isn’t actually a Dem plant.

  51. Until the Loving ruling there was no inalienable right to an interracial marriage. With the ruling the right was unconstitutionally created and then accepted as constitutional.

    IOW, you haven’t read or understood Loving, haven’t read any of the judicial rulings on same-sex marriage, have no idea what you’re talking about and don’t care to change that fact. I mean, you do you, but why for the love of Ubizmo decide to wave the ignorance flag in the middle of a thread about how the Irish got it right?

  52. When I heard of this, I immediately thought of the song “Brand New Day” from The Wiz. Congratulations, Ireland.

    Note to self: add “unconstitutional creation of rights” to the linguistic markers for RW “the Constitution is what I think it should be, not what SCOTUS and lawyers say” ignorance.

  53. I am quite pleased with the Irish vote. No idea what IOW means. All I can figure is that you and others cannot conceive that the court can make a ruling that literally makes a new law even while interpreting an old one. I do not think 3 equal branches works at all if the court can look at an existing law and rule in such a way that a new law with nationwide application is created in the process of the ruling. I only kept up this conversation in this thread because of reactions to my original post. I will stop now. I have no desire to derail the thread further on this side journey. Scalzi will mallet me. He never has and I don’t want there to be a first time. To the Irish nation: Well Done!

  54. IOW is short for In Other Words.

    My understanding is that Congress makes legislative law. The courts make case law, by interpreting the laws Congress makes, and the supreme law of the land, the Constitution (and international treaties, which the Constitution gives equal force to its own provisions). SCOTUS can rule that a law made by Congress, or any lesser legislative body, violates the supreme law.

    This is case law. Case law is properly the sphere of the courts. It is no less law than legislative law. So you’re right in the sense that new case law is made continually, every time a court makes a ruling; where you’re wrong is in saying there’s anything unConstitutional about that.

  55. XOPHER: Case law. Slap me silly. I remember case law from a college class called Civil Liberties Under the Constitution where we read and discussed all the great cases since the beginning of the supreme court including many of the dissenting opinions that later prevailed. Okay, point conceded. The June ruling will be case law. I guess my real problem is when case law is not just some minor or medium twist to the law being interpreted but raises to the level of a new national in scope major law change not contemplated when the law being interpreted was passed and signed. When that happens it sure makes the court look like it is superior to the other branches. I really, really want the three branches to be equals as written in the existing Constitution.d Is that so wrong? Wanting equal branches?

  56. What’s wrong is your insistance that this (rather old, by USian standards) process somehow makes the branches unequal. Even if the Supreme Court makes case law, that is not necessarily the end of the story. Congress can turn around and rewrite the law in a way that might better pass Constitutional muster. Or, failing that, Congress can (with the help of the state legislatures) amend the Constitution. And, of course, the Executive and Legislative branches control who actually is in the Judicial branch at all, allowing them to exert some indirect control there.

  57. When I was a closeted bisexual teenager in Dublin thirty-five years ago, it was impossible to imagine a referendum on LGBT rights passing overwhelmingly all across Ireland. I was crying tears of joy on Saturday.

  58. docrocketscience– Agreed on all the points you make. I just find myself bothered, no matter the issue, when a court ruling making case law does so with nationwide sweep and the makers of the law never intended that result when passing the law. Never even contemplated that result.

  59. What’s wrong is your insistance that this (rather old, by USian standards) process somehow makes the branches unequal.

    The actually-existing US constitution doesn’t actually say that the “branches” are “equal”. It just says, “authority of president is X, authority of congress is Y, authority of supreme court is Z”. If you want to think they’re equal or supposed to be equal that’s OK, but the real supreme court is bound by Z, not by “less than or equal to X or Y”.

    [and, yes, the supreme court has the power to declare “laws” unconstitutional because the congress has limited legislative competence — no restructuring cities in california or demanding that householders in Los Sacramento host NOAA skytroopers — and because the US supreme court has the authority over disputes involving the US federal government, something that definitely includes “this piece of purported legislation is ultra vires”].

  60. Dear Gary,

    I don’t mean this unkindly. Truth.

    Get over it.

    When you have to wind the clock back two centuries to Monroe to complain about how Things Have Gone Wrong, well…

    That ship has sailed.

    I mean, I’m not thrilled by Imperial Presidencies, Executive Privilege and Congress totally punting to the President on starting wars, none of which is demanded by the Constitution. But absent a time machine that lets me go take Jefferson to task (“Dude, this is gonna go soooo wrong. Don’t go there.”) it is the way it is. I don’t whine about it. I don’t make believe there is any chance it’s going to go away after all this time.

    So, stop yer whining about it, ’cause it’s pointless and wastes your energy. If you hope you are part of a burgeoning movement of dissent on this, you’re not. It’s a super-fringy dissent and has been so for ages and it’s not growing.

    And, not so by the way, when the Supreme Court issues a reading of the Constitution that overrides legislative law or intent or case law, that is NOT “making new law.” The Constitution is the ultimate arbiter and overrides mere “law.”

    I think we’ve probably beaten this to death. I will retire from the field. You may have the last word if you need it.

    pax / Ctein