In the blink of an eye, a historic shift has taken place

Just 30 years ago, Supreme Court said homosexuality was ‘harmful’ and ‘wrong’

Senators Katherine Zappone and David Norris: the latter was told in the Supreme Court in 1983 that homosexuality was “morally wrong, and has been so regarded by mankind throughout the centuries. It cannot be said of it . . . that no harm is done if it is conducted in private by consenting males. Very serious harm may in fact be involved.” Photograph: Dara Mac Dónaill / The Irish Times

Senators Katherine Zappone and David Norris: the latter was told in the Supreme Court in 1983 that homosexuality was “morally wrong, and has been so regarded by mankind throughout the centuries. It cannot be said of it . . . that no harm is done if it is conducted in private by consenting males. Very serious harm may in fact be involved.” Photograph: Dara Mac Dónaill / The Irish Times

 

On a Friday morning in April 1983, David Norris, then a 38-year-old lecturer at Trinity College Dublin, took his place in the public gallery of the Supreme Court in Dublin. He hoped it would be the culmination of his five-year campaign to overturn Ireland’s legal ban on homosexual acts.

Within minutes of the five judges taking their seats on the walnut dais, however, it became clear that Norris had lost. The court ruled 3-2 against his claim that the prohibition breached his constitutional right to privacy.

In a majority judgment that today reads like the most anachronistic, if not plainly the worst, ever produced by Ireland’s highest court, Chief Justice Tom O’Higgins said a right to privacy – the right “to be let alone” – could never be absolute.

“There are many acts done in private which the State is entitled to condemn, whether such be done by an individual on his own or with another. The law has always condemned abortion, incest, suicide attempts, suicide pacts, euthanasia or mercy killing,” he said.

These were to be equated with two men making love, he implied. Homosexuality was “of course, morally wrong, and has been so regarded by mankind throughout the centuries”.

The Chief Justice went on: “It cannot be said of it . . . that no harm is done if it is conducted in private by consenting males. Very serious harm may in fact be involved. Such conduct, although carried on with full consent, may lead a mildly homosexually oriented person into a way of life from which he may never recover.”

Norris appealed that decision in the European Court of Human Rights, and in 1988 the Strasbourg court ruled in his favour. Five years later, in 1993, the offence of “buggery” was removed from Ireland’s statute books.

In the broad sweep of history, 22 years is the blink of an eye. That’s partly what marks out the result of the marriage referendum as an extraordinary moment in Irish democracy.

More people voted on Friday than in any referendum since Independence, among them a great many young people who had never before cast a ballot.

If the turnout was high, the result was resounding. Some of the old categories we use to carve up the electorate – urban/rural, young/old, liberal/conservative - have, at least temporarily, been rendered useless. Class has turned out to be a poor guide to voting intention. Even Donegal has voted Yes.

The result underlines the waning influence of the Catholic Church, not too long ago the uncontested arbiter of public morality in Ireland.

Its influence is far from negligible, but the campaign showed that it must now form alliances to have any chance of securing a majority.

On marriage it had none: ranged against it were the political parties, civil society groups, trade unions, the media and even some of its best-known priests.

The Yes side – vibrant, smart and disciplined – proved wrong the sceptics who believed it would be outmuscled in the ground game, out-thought by the wizened veterans of referendums past or punished for its association with politicians whose stock has been pretty low of late.

Ultimately, the Yes campaign achieved the holy grail of all political campaigns: it managed to make people feel better about themselves by marking an X on a ballot paper.

The impact on politics more broadly may turn out to be limited enough, and there’s no telling whether the young people who turned out on Friday will do the same in a general election. But for many politicians across the spectrum Saturday was a triumph.

The Labour Party’s Eamon Gilmore insisted on a referendum against the wishes of the coalition partner, Fine Gael, which didn’t want it in the Programme for Government. But Fine Gael also emerges strengthened, some of its most high-profile figures having enthusiastically thrown themselves into the campaign in a way that undoubtedly helped it across the line.

On the eve of the vote, Taoiseach Enda, who until very recently had never declared a public opinion on same-sex marriage, was channelling Harvey Milk. He tweeted: “For gay sons & daughters, brothers & sisters, family & friends, Yeats said it best: ‘Tread softly because you tread on my dreams’.”

The outcome is a sweet moment, too, for the incrementalists within the gay rights movement, who championed civil partnership and, latterly, adoption rights for same-sex couples, believing they would lay the groundwork for marriage. They were proved right – and faster than anyone would have expected even five years ago.

But the biggest winners are the thousands of people, young and old, who had never before been involved in a political campaign but put their shoulder to the wheel over the past few months. They canvassed, they persuaded and cajoled; they held their nerve.

Using social media as an organising tool, they pioneered a new way of campaigning. The idea of a “starting a national conversation” is a tired cliché of Irish political life, but the stories of students convincing their parents and grandparents over the dinner table injected real meaning into the slogan.

Enda Kenny said a Yes vote would “obliterate prejudice”. It won’t do that, but it will make life an awful lot better for many Irish citizens.

The outcome raises intriguing questions about future debates on contentious social issues. The No side deployed surrogacy as its key campaign issue because it saw traction in it. The Government removed surrogacy from the Children and Family Relationships Bill partly because it feared the controversy it might generate, and it will now be for the next administration to deal with a sensitive issue that has been consistently ignored by the legislature.

On the liberal left, the spectacular success of the Yes campaign in effecting a change that would have been unthinkable just a few years ago will inevitably turn attention to the Eighth Amendment, which bans abortion in all but the most limited circumstances.

Very few politicians want to touch it, knowing that any attempt to repeal or substantially amend “the Eighth” would be a very different proposition and a very different and more divisive campaign, but that may be the next big battle on the horizon.

On the steps of the Four Courts that morning in April 1983, a crestfallen David Norris reeled from the loss of his landmark case. “It raises serious questions regarding the value of the Irish Constitution in that it failed to vindicate my rights as a homosexual citizen,” he said. “What use is the Constitution to me?”

Norris was elected a senator four years later, and has been one of Ireland’s best-known public figures ever since. Yesterday, as the Yes votes piled high in count centres across the country and it became clear that Ireland had voted overwhelmingly to change that Constitution, Norris – proudly wearing a Tá badge and a broad smile – arrived at Dublin Castle to raucous cheers.

How did he feel, a reporter asked. “Absolutely jubilant,” Norris replied.

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