In my decision to write this piece I have chosen, much like the United Kingdom in its decision to leave the European Union, to break somewhat with established convention. In contrast to the deluge of carefully structured articles that have surfaced in the aftermath of Brexit, this post will instead be a ‘thought-piece’ – a stream of consciousness whose design reflects not only my mental chaos as I try to grapple with this occasion, but also the economic, political and social chaos that has gripped the country in the wake of it. In truth it is difficult to know where to start with Brexit, some of the reasons underpinning it are as old as the UK itself, deeply rooted in a history of empire as well as in class politics. On the other hand, some of its conduits were decidedly modern and were anchored in the waters of globalisation, rapid social change and a climax of Euroscepticism carefully whipped up by far right parties in the run up to the vote. Whilst volumes could be written about any one of these topics, in this piece I will pick out a few of the key themes that were the heart of the referendum and bounce them around my echo-chamber in order to offer an insight into some of my thoughts on our European exit.
“Democracy” was the buzzword of the leave campaign, a slogan repeatedly chanted like some Vedic hymn both in the run up to and after the EU referendum. “The EU is undemocratic” they cried, “we need our democracy back” they howled. As an initial thought, it’s strange that a negative definition is as close as we ever seem to get to the concept of democracy. In other words, whilst we seem to have a pretty good idea of what democracy it is not, we have virtually no idea of what it is? We know for example, that it is not rule by military might, nor divine right (although many believe that our monarchy contradicts this principle) but who can truly say that they know what democracy is? Philosophers and political theorists have long posited that democracy is best defined as the will of the people as expressed through their vote. That definition seems attractive at a glance and was central to leave campaigner rhetoric in the run up to the referendum, but the immediate question raised is – what if not everybody votes? It’s worth noting that only about 70% of the eligible voting population cast their vote in the EU referendum and the leave camp won by a majority of 51%. Can we really say that the ‘will of the people’ has been exercised when under 40% of the population voted in favour of Brexit? It is clear that lack of voter turnout doesn’t automatically equal lack of democracy, but as an article I read recently suggested, the fact that a vote from such a low percentage of the population on such a critical issue can carry the day can be argued to be indicative of a glaring deficiency in our democratic process and the line between deficient democracy and undemocratic is anything but clear.
Prolific African writer Chinua Achebe once argued that one of the most important aspects of democracy was an “educated, participatory followership”. I have already touched on the lack of participation surrounding the referendum, but perhaps a more troubling question is to what extent those who voted were indeed “educated” in regards to the EU before they cast their lot? Having been born and raised in Britain, I have always been alarmed at just how little the EU features in our domestic education system and despite having been through one of the country’s more rigorous secondary schooling systems, it was not until I studied law at University that I can claim to have developed any real knowledge of the history and workings of the EU. This academic deficit permeates all levels of society and many at the time of the referendum questioned whether they had sufficient knowledge of the EU or perhaps more importantly, what leaving it might mean, before they made their decision. This is not to suggest that if people had this knowledge, they would have definitely voted to remain, but a shadow is definitely cast over the democratic value of a process where many of those voting were unsure as to the subject matter of their vote.
Closely linked to the cries for a return to democracy were calls that Britain needed to exit the EU so as to ensure the “return of British sovereignty”. Sovereignty is defined as the authority of a State to govern itself and the argument was made by many leave campaigners that Britain had been sucked into the EU and was being forced to adopt any and all of its policies. We had thus effectively lost our ability to self-govern and were being “ruled from Brussels”, so the argument frequently went.
In response to this point, we need only look briefly to history which shows that whilst we may have ceded some of our decision-making power to the EU, this was entirely our own choice. When Britain joined the EU in 1975 under the conservative Government of Edward Heath, it had been long established that joining would entail some loss of sovereignty. In 1963, more than 10 years before the UK joined, the Court of Justice of the European Union had ruled that “the [European] Community constitutes a new legal order in international law for whose benefit the states have limited their sovereign rights”. Shortly after this decision, the Court reaffirmed this position, holding that “The transfer by the States from their domestic legal system to the [European] Community legal system…carries with it a permanent limitation of their sovereign rights…” These decisions made crystal clear that any State joining the EU would be required to relinquish some of its sovereignty and it is bizarre that now, almost 50 years after nevertheless choosing to join the EU, loss of sovereignty was such a pivotal issue in the referendum. There is of course the argument that the UK were not sure of just how much sovereignty they would lose as a member of the EU but the reality is that since joining , the UK has maintained the largest share of its sovereignty as compared with any other member State. We opted out of the Schengen agreement abolishing border controls between member states, opted out of the monetary union rejecting the euro as a form of national currency, secured opt-outs for certain provisions of the EU Charter on Fundamental Rights and we also opted out of certain provisions of the EU area of freedom security and justice. This ‘a la carte’ approach to the EU can hardly be squared with the notion that the UK were helplessly accepting all of its rules and our relationship could rather be characterised as the UK holding the EU to ransom, forcing it to adopt our policies and rules.
Some have suggested that in place of our current relationship with the EU, they would like to have an agreement similar to that of Norway and Switzerland which both have single-market access but are not part of the Union. They argue that these countries have been able to retain a greater share of their sovereignty whilst still being able to reap most of the benefits of the EU. A closer look at these countries relationships with the EU however, reveals that this argument is specious. To begin with, a consequence of Norway’s non-membership in the EU has meant that whilst it has had no say in the EU’s law making process, it has nevertheless been required to adopt the majority of the EU’s legislation and has implemented all of the four freedoms including the free movement of persons – the most controversial of all freedoms in the run up to Brexit. Switzerland is in a similar situation and is required to accept the vast majority of EU Laws whilst having no say in their development. If our leaving now means that we will be forced to replicate these models, It is highly doubtful whether more sovereignty really will be the result of our Brexit as some have argued.
The issue of immigration was at the heart of the referendum. I would not go as far as to say that the other issues were tangential, but it is without doubt that the foremost reason that many people voted to leave the European Union was because it had become associated with uncontrolled, and uncontrollable, immigration. From the outset it must be noted that the very portrayal of immigration as a problem, and only a problem, in the run-up to Brexit was spurious. Immigrant communities have for centuries contributed to the enrichment of British society bringing not just culture but, perhaps more importantly, labour to the country. It was the large scale immigration from commonwealth nations at the invitation of the British Government post WWII that helped to re-build the nation and transform it from its ravaged, financially embattled state into one of the most prosperous countries in the world today. It must also be remembered that even in present times, many of our public industries are in large part dependent upon immigrant workers and that immigrants continue to make an immensely useful contribution to British society. These aspects were scarcely touched upon in the run up to the referendum, with the leave campaign choosing to focus exclusively on the problems raised by immigration and the remain campaign, concerned about the potential fallout from any talk of ‘good immigration’, happy for the most part to simply counter their assertions.
There are of course problems related to immigration within the UK however, one of the biggest obstacles to solving these issues has been terminology, with the word ‘immigrant’ being used as a ‘catch-all’ term to lump together very different groups of people. There were essentially 3 main groups that the leave campaign targeted in their bid to leave the EU: Recent EU Migrants, recent Non-EU migrants and immigrant populations already resident in the UK. In relation to EU migrants, the main issues were reported to stem from two main factors which were wage depression affecting mainly working class communities and competition for housing also mostly affecting working class communities. Whilst there is evidence that wages across some industries have fallen in recent years, there has certainly not been one cause of this and it has not been established whether EU migration was even a factor, with many citing the global recession and government austerity policies as the main driving factors behind this phenomenon. In terms of housing, again whilst EU migration may in some instances have increased tensions in this area, there is not a single answer to this question and many agree that the housing crisis in the UK has infact been the result of an epic failure of public policy by consecutive Governments who have failed to build enough houses to meet growing demand. In relation to non-EU migrants, their numbers have increased in recent years, but many who have been categorised with this label are not simply ‘migrants’ moving for potentially economic reasons, but rather are refugees, fleeing wars and persecution. I have elsewhere written about Britain’s involvement in many of these overseas conflicts and it is ironic that whilst we have contributed heavily to the international displacement of persons, we continue to lament taking some of the smallest numbers of refugees in proportion to our population than any other major European nation. The supposed ‘problem’ raised by the third class of person, immigrant communities already here, deserves special mention. Far from presenting a genuine problem for voters to consider, this argument played on prejudicial fears of immigrant communities ‘taking over’ British culture. It rested solely on racial and religious hatred and since Brexit, many who voted simply because they do not like immigrant communities and ethnic minorities have reared their heads, buoyed by feelings that their sentiments are in the majority. This has led to a sharp rise is hate crime in the UK and remains one of the more alarming legacies of Brexit.
It is not yet known what will became of the United Kingdom after Brexit. The general economic picture is reported to be bleak, and some have even predicted a constitutional crisis may be on the horizon as Scotland and Northern Ireland consider whether they will remain part of the UK in future. In my view, one of the most damaging aspects of Brexit is neither economic nor political, but rather that it sends a message to the world that despite the fact that most countries are moving ever closer together, the UK has a vein desire to move backwards; To ossify its borders whilst most are becoming more fluid and to isolate its culture whilst most are becoming more intertwined. As someone who has spent much time living abroad, I know that perhaps more than anything else, it is this image of a reactionary UK, unable to cope with change that will be the lasting legacy of Brexit and our departure is all the more dispiriting as the arguments for it rested on such feeble footing.
This short post was inspired by none other, than my mother. “Don’t beat yourself up!”, four simple words that encapsulate years of wisdom and act as a gentle reminder that even in the midst of life’s most stressful moments, we should never be too hard on ourselves.
Although harmful and ultimately unnecessary, “beating ourselves up” is infact remarkably common. Have you ever had a moment of worry or doubt about something and then replayed or imagined the scenario over and over again in your head until you are stressed-out and worried? This exercise often takes place in the immediate aftermath of a bad experience, but can also be common before a situation has even happened, as we consider all of the possible ways in which it could go wrong.
It goes without saying that there is little to be gained by beating ourselves up. If a situation has recently occurred then it is by definition in the past and we cannot go back in time to change it. So we bombed the interview, or felt we could have done better in our presentation, the fact is that we cannot re-live that moment. However, what we can do is either to take what lessons we can from the bad experience or, if it is the case that we feel we cannot learn from a situation (almost impossible in my view), then we should try and forget about it. As an article I read recently reminded me,“it’s ok to have a shit day” and sometimes it’s best to just forget a bad experience and move on with our lives rather than to endlessly agonise over it. Not beating ourselves up becomes even more important if a situation has not yet happened, as doing so can actually create the experience we are hoping to avoid. If we are thinking only negative thoughts before an event then it is quite likely that this worry will disrupt our preparations and may even impair our performance on the day. The reality is that the event hasn’t happened yet and until it has we’ve simply no idea of how things are going to go, so why imagine the worst?
None of this is meant to suggest that feeling down or worried about something does not represent perfectly normal human emotion. Simply put, we cannot help it if we are upset about a situation that did not go well or feel nervous about a prospective one. However, “don’t beat yourself up!” is a reminder that whilst our feelings in these situations are perfectly natural, they probably aren’t rational and allowing them to snowball out of control is never likely to be helpful. Instead, we should try replacing them with other thoughts and feelings for example, determination to deal with a situation better next time, or positive thoughts about how we will perform in future. Doing this will help us to overcome these negative feelings and invest our emotional energy into more useful pursuits.
So next time you feel that you’ve let feelings of sadness or worry about a past or future situation build up remember, either let them go or re-focus your energies, the important thing, as my mum would say, is “don’t beat yourself up!”.
In a recent decision the Supreme Court has ruled that Section 60 of the Criminal Justice and Public Order Act 1994 (‘s.60’) authorising ‘suspicionless’ stop searches, does not constitute a breach of Article 8 of the European Convention on Human Rights (‘ECHR’) regarding respect for private and family life. This decision has attracted much criticism and a close examination of it raises serious concerns vis-à-vis the soundness of its legal analysis, its accordance with established Strasbourg jurisprudence and its regard for key statistical information relating to the use of stop and search powers. Ultimately, the judgment reaches an errant conclusion with potentially damaging implications for the already fragile relationship between ethnic minorities and the police in the United Kingdom.
The Appellant in this case was a 37 year old Afro-Caribbean woman named Juliette Roberts. Ms. Roberts worked in a school helping young children with disabilities and had no previous cautions or criminal convictions of any kind. In 2010, Ms. Roberts boarded a bus in her local borough of Haringey, North London and following the discovery that she had insufficient funds on her Oyster card and no money with which to pay for her journey, transport police officers were called to the scene. Upon arrival, the police elected to search Mrs. Roberts under s.60 of the Criminal Justice and Public Order Act 1994. S.60 grants police powers of stop and search ‘in anticipation of violence’ and specifically authorises a police officer to stop and search any person or vehicle within a designated area for offensive weapons or instruments within a limited time period. S.60 does not require a police officer to have any reasonable suspicion prior to carrying out a search and only requires that they have the authorisation to do so from an officer of at least the rank of inspector. As Ms. Roberts worked in a school, she was concerned that some of the young people she worked with might see her being searched and so asked to be searched at a police station instead of in public. The police officers refused her request and she was restrained, handcuffed and her body and property were forcibly searched.
After her claims in the Divisional Court and Court of Appeal failed, Ms. Roberts appealed to the Supreme Court, arguing that s.60 was contrary to Article 8 of the ECHR regarding the right to respect for private and family life. Specifically, Ms. Roberts argued that s.60 conferred on overly-broad power on the police and thus was not ‘in accordance with the law’ as required by Article 8(2) ECHR.
In a unanimous decision, The Supreme Court accepted that suspicionless stop searches infringe upon the right to respect for private life, however, they argued that they are in ‘accordance with the law’, in addition to pursuing a legitimate aim and being necessary in a democratic society as required by article 8(2) ECHR. Central to the judges’ decision were what they considered to be the numerous ‘safeguards’ in place to constrain the exercise of the broad power conferred upon police officers. The judges drew particular attention in this regard to the Police and Criminal Evidence Act 1985 (PACE) which govern the steps an officer must take before they begin a search, such as telling a person their name and the object of the search and also to parts of the police Standard Operating Procedures which contain reference to the Race Relations Act 2000 which prohibits racial discrimination in the exercise of police powers. The judges also highlighted the Best Use of Stop and Search Scheme (‘BUSS’) which largely deals with authorisations given by a higher ranking officer before individual officers are allowed to use s.60 stop searches and requirements for data collection regarding the use of the power.The Court reasoned that as failure to follow these safeguards could render a stop and search unlawful and therefore expose an officer to disciplinary action or Civil proceedings, they were sufficient constraints on the use of the s.60 power.
The judges also held that the powers were of ‘great benefit’ to the public and that their unpredictability was critical to their deterrent effect. Finally, the judges’ reasoned that although there was concern that black and minority ethnic people were being disproportionately targeted with the s.60 power, black and minority ethnic people would most benefit from the reduction in violence that would result from the use of such powers as many gang members were from these ethnic groups.
Several aspects of this decision are deserving of criticism and the first is the Court’s assessment of the purported ‘safeguards’ on the exercise of the s.60 stop and search power. In Gillan and Quinton v UK the European Court of Human Rights (‘ECtHR’) had to consider a similar power of suspicionless stop and search under the now defunct s.44 of the Terrorism Act 2000. In finding that s.44 constituted a violation of Article 8, the ECtHR explicitly rejected the argument that the PACE Codes of Practice were a sufficient safeguard against arbitrary searches. The Court accepted that an officer carrying out a stop and search was bound to comply with the Codes, however, it determined that they governed only ‘the mode in which the stop and search is carried out’ as opposed to providing any real constraints on and individual officer’s ‘decision to stop and search’. From an analysis of the the BUSS scheme it is clear that this also places no additional restrictions on an individual officer’s decision to carry out a suspicionless stop and search and focuses only on the prior authorisation. The Court’s argument that the Standard Operating Procedures constitute a safeguard as they contain provisions on the Race Relations Act which if breached could expose an officer to legal or disciplinary proceedings is similarly unpersuasive. In Gillan, an almost identical argument was put forward by the Government, however, this was dismissed by the Court on the basis that “in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.”
The judges’ subsequent remarks about the ‘great benefits to the public’ which stem from s.60 stop searches are also deserving of criticism. Figures taken from the Ministry of Justice 2010 report on Race and the Criminal Justice System show that out of the 118,119 s.60 stop searches carried out by police in 2009/2010, only 2% resulted in an arrest. It is difficult to see how a power with such a miniscule arrest rate can be said to be greatly beneficial to the public and it is obvious that its ‘unpredictability’ has done little to improve its efficacy. With this is mind, the judges’ suggestion that these benefits could in some way justify discriminatory searches is indefensible. Several reports have pointed to the astonishing race disproportionately in the use of the s.60 power, with one study by the Equality and Human Rights Commission indicating that in 2011/12 black people were 28 times more likely to be stopped and searched under s.60 than white people. This disproportionality, coupled with the bewilderingly low arrest rate, suggests grave prejudice in the use of s.60 by the police and it is difficult to see how the Court can seek to justify this on any grounds. The Court’s argument that even if discrimination is a problem, as many of these gangs are ‘largely composed of young people from black and minority ethnic groups…it is members of these groups who will benefit most from the reduction in violence” is specious. Firstly, the premise is highly debateable; there is no universal consensus as to exactly what constitutes a ‘gang’ and many commentators have suggested that the term is disproportionately applied to groups of young black males. Thus in a nation where groups of disaffected white youths almost necessarily outnumber similar groups of black youths, they avoid this type of predatory categorisation and acknowledgement in mainstream discourse. Next, the notion that s.60 has a serious effect on the level of youth violence is also highly debateable. Tellingly, the judges adduce no references to support this assertion, however, common sense dictates that if the arrest rate for s.60 is so low, it is unlikely that it can be having a profound effect on levels of youth violence. What is most concerning about this passage however, is the suggestion that as some young people from black and minority ethnic communities are involved in violent crime, it is somehow justifiable to treat all young black people as potential suspects. Not only would such racial profiling be manifestly unlawful under the same PACE Codes and Race Relations Act that the judges had earlier lauded, but this reasoning has the effect of reinforcing harmful and pernicious stereotypes of young black people as potential criminals, conveniently paying no attention to the overwhelming body of evidence which suggests that they are also far more likely to be the victims of violent crime than any other race.
A close analysis of the Roberts judgement reveals that it reaches a wholly unsatisfactory conclusion. In their analysis, the Supreme Court essentially disregard the criticisms and concerns expressed by the Strasbourg Court in Gillan and reach a decision as to the compliance of s.60 with the ECHR which is seemingly devoid of any appreciation of the many reports and statistics related to the futility and racially disproportionate use of the power . It is perhaps no surprise that after stinging criticism by the Home Secretary regarding the discriminatory and unlawful application of s.60, its usage has dropped dramatically in recent years. Nevertheless, the Court’s holding of it as compliant with Article 8 ECHR and attempts to justify its discriminatory application risk reviving its usage and exacerbating tensions between the police and ethnic minority communities who see it as a tool of racial oppression.
In the wake of the large number of asylum-seekers entering Europe from the Middle-East and Africa, the majority of political and media attention has been focused on the question of which European countries should be responsible for accommodating these people and in what numbers. The narrow focus of this debate has ignored the root causes of the crisis, causing many to disregard the critical role played by many European States in the creation and continuation of hostilities in these asylum seeker’s countries of origin. Through an examination of this role, it is clear that Europe bares great responsibility for the people reaching its shores and in many ways, can be said to have engineered its own crisis.
The greatest number of asylum-seekers arriving in Europe in recent times have been from Syria and this is the result of a long and bloody civil war between State security forces and armed rebel factions which has ravaged the nation’s civilian population. Since the outbreak of the Syrian civil war in 2010, several European States have been implicated in the provision of both financial and military assistance to anti-government forces in their attempt to overthrow the regime of President Bashar Al-Assad and crush his supporters. In August 2012 the British Government announced that it would be sending 5 million pounds to opposition groups in Syria to aid them in their military operations. In addition to providing financial assistance to the rebels, the UK has also been involved in the establishment of military camps in neighbouring States Turkey and Jordan where they have been training rebel fighters. As well as the United Kingdom, France have also played an active role in the Syrian civil war. In 2014, French President Francois Hollande revealed that France had directly supplied weapons to opposition groups in Syria. The direct supply of weaponry to the rebels was made possible after the EU voted to lift an arms embargo on Syria which prohibited the exportation of arms directly to rebel militias. European States have also used indirect means to supply weaponry to rebel groups, such as through the trade of arms with Gulf States who have funnelled these weapons to the opposition factions they support. This supply of financial and military assistance to anti-government forces has had the effect of substantially prolonging the life of the Syrian civil war which has led to millions more civilian deaths, internally displaced persons and asylum seekers travelling to neighbouring States and also to Europe to escape the violence.
The second largest number of asylum-seekers arriving in Europe in recent times are reported to be from Afghanistan, another nation which for years has been riven with internal strife and violence. The involvement of European nations in Afghanistan is well documented and dates back to 2001, when in response to the September 11 attacks in the United States, Britain, later joined by NATO forces from Europe invaded and occupied Afghanistan. In 2003, NATO took permanent command of the International Security Assistance Force (ISAF) and became embroiled in a bitter war with Taliban rulers for the control of key cities within Afghanistan. 2015 is reported to have been one of the most violent years since the Afghan War began with over 5,000 civilian casualties reported this year so far. The perpetual fighting between Afghan, European and US forces has led to the immense displacement of persons as tens of thousands of civilians have fled, many of them to Europe, in order to escape the increasing violence and unrest in the nation.
Libya also represents a common destination from which many of Europe’s recent asylum-seekers have travelled. Prior to events which culminated in foreign military intervention in 2011, Libya was a relatively stable nation with reportedly one of the highest standards of living on the African continent. Due to its large crude oil reserves, it was also one of the founding member states and key nations within OPEC, the organization of petroleum exporting countries. In 2011, Libya descended into a fierce civil war between the security forces of then President, Muammar Gaddafi and armed rebel militias. Following a call from the United Nations for member states to take all measures to “protect civilians and civilian populated areas…while excluding a foreign occupation force of any kind”, a foreign intervention force led by NATO began to offer military support to the rebels, as well as to carry out airstrikes and naval blockades aimed at weakening the President and his security forces. Thousands of civilians died during this period of bitter fighting between Gaddafi’s security forces and western-backed militias determined to overthrow him. As well as high numbers of civilian deaths, the fighting led to thousands of internally displaced persons and many fled the country, seeking asylum in neighbouring States and the West. The killing of Gaddafi created a power-vacuum in Libya and ferocious internecine warfare ensued between the controversial new government and well-armed militias who refused to disband once the new Libyan government was in power. This has been dubbed by many as Libya’s ‘second-civil war’ and has resulted in large numbers of civilian casualties and displaced persons. In addition to this, since the fall of Gaddafi’s government there have been several reports of systematic, racially motivated murders of black African workers by rebel forces who are reported to operate with impunity in the now lawless country. This ongoing violence has led to thousands of civilians fleeing the country, many of whom have made their way to Europe in order to escape the violence.
The above demonstrates the key role that several European nations have played in the violent conflicts many asylum-seekers now travelling to the continent are risking their lives to escape. This role has been characterised both by the provision of financial and military assistance to various armed factions and by the direct intervention of European forces within these foreign conflicts. Instead of bringing about a swift-resolution to these conflicts, European involvement has had the effect of intensifying and protracting these armed struggles, the result of which has been an even greater exodus of people, many of whom have fled to Europe in search of safety. In many ways therefore, the ‘migrant-crisis’ has been a phenomenon of Europe’s own making and it is clear that as such, European nations should take far more responsibility for these desperate people’s accommodation.
“The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry…In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking…”
This was Chief Justice John Roberts’ damning indictment of the majority opinion in the recent US Supreme Court case of Obergefell v Hodges, a decision which legalized same-sex marriage across the United States. Whilst many commentators have endorsed the position that the judgment represents a usurpation of the people’s democratic freedoms and an attempt to legislate from the bench, others have defended the judgment as a simple extension of the liberties contained within the Constitution and recognized in the Court’s jurisprudence. This article aims to examine those arguments in order to determine how the landmark Obergefell decision should correctly be characterized.
This case was brought by a number of same-sex couples against the States of Michigan, Kentucky, Ohio and Tennessee. All of these states legally defined marriage as a union between one man and one woman and the Claimants argued that these laws violated their fundamental rights under the 14th amendment to the United States Constitution. The specific provisions of the 14th amendment in question were the ‘Due Process’ and ‘Equal Protection’ clauses which, taken together, prohibit any State from denying to any person life, liberty or property without due process of law and forbid any State from refusing to afford anyone equal protection under its laws. The Claimant’s arguments were that by refusing to allow them to marry and/or refusing to recognize their same-sex marriages, the laws of the States in question impinged on the fundamental liberties inherent in the 14th amendment and resulted in an unacceptable disparity in treatment between themselves and same-sex couples. After losing their case in the Court of Appeals the Claimants appealed to the Supreme Court who decided to hear their cases.
The central questions for the Court were:
- Whether the 14th amendment requires a State to licence a marriage by two people of the same sex.
- Whether the 14th amendment requires a State to recognize a same-sex marriage performed in another State.
In a 5 to 4 majority the Court answered both of these questions in the affirmative and based its reasoning on what it held to be four ‘principles and traditions’ which demonstrated not only that marriage is a fundamental right under the US constitution, but that it is a right which same-sex couples can also claim to have the benefit of:
- A person’s choice about who they choose to marry forms part of their individual autonomy which is a recognized right under the Constitution.
- The right to what the Court termed ‘intimate association’ through marriage is one which everybody enjoys.
- Marriage safeguards children and families by affording relationships legal stability and protection.
- Marriage is central to the Nation’s social and legal order.
After identifying these key principles and traditions the Court then explained that the right to marry on equal terms as opposite sex couples was also a matter of ensuring that all people were afforded the same treatment under the laws and thus engaged the equal protection clause of the 14th amendment also.
The Court then pointed out that although the legislature is often the most appropriate medium for change, people do not have to await the result of legislative action before they assert their fundamental rights and as the right to same to sex marriage was one which the Court now agreed was fundamental, legislative action (or inaction) could no longer prove conclusive. Furthermore, as the right to marriage was recognized as a fundamental right of every person no matter where they reside, the Court also concluded that States must recognize marriages performed outside of their own jurisdictions also.
The central argument of the dissenters in this case stems from what they see as the Court’s impingement on the democratic will of the people. Judges, they argue, are appointed to rule on what the law is, not what it should be and as no constitutional right to gay marriage was ever created by those who ratified the Constitution, it is an issue that should properly be left to State legislatures to decide.
Whilst this argument may initially appear to have some appeal, it is infact the product of an extremely rigid and narrow understanding of the American Constitution and of the judge’s role to interpret it. Far from attempting to usurp the people’s freedoms through inventing the law, the majority instead used their judicial powers of interpretation to give a broad meaning to the conception of ‘liberty’ and thus give recognition to a right which homosexuals had long been denied. Whilst some may equate this with judicial ‘policymaking’ the Courts decision to give recognition to fundamental rights fits perfectly with the notion of the Constitution as a ‘living document’ which was designed to and is capable of changing and adapting with time.
It is important to note that this is not a novel development in the Court’s jurisprudence and the 14th amendment has been used as a basis for the recognition of several fundamental rights throughout America’s history. This was the case in the landmark judgment of Loving v Virginia (1967), which recognized the right of all people to marry regardless of race and was also the case in Roe v Wade (1973), where the Court broadly construed the concept of liberty to include a woman’s right to have an abortion. These judgments clearly demonstrate that as well as looking to the original intent of constitutional provisions, it has been the Court’s tradition to consider how constitutional rights should be interpreted in a contemporary context in order to discern how best to preserve their spirit and essence.
Whilst the Courts are obliged to have respect for the legislative process, it would be inconsistent with the Court’s role to simply defer to State legislatures in every case where a constitutional provision does not specifically mention the right in question. If this were the rule the Courts were to follow, many of the racially oppressive ‘Jim Crow’ laws approved by hostile majorities after the Civil War could still very well be in force today; and States keen to deny women certain fundamental rights in relation to their own bodies may still have licence to do so – solely on the basis that these rights are not specifically mentioned in the Constitution.
As Justice Kennedy points out in the majority opinion ‘The dynamic of [the] constitution is that individuals need not await legislative action before asserting a fundamental right’ and this case the Court did exactly what it is tasked to do – interpret provisions of the Constitution in order to determine whether fundamental rights have been violated. The fact that certain States are now obliged to alter their laws is the perceived and rightful corollary once it has been established that a fundamental right has been violated.
It seems therefore that the Court very much adhered to its ‘principles and traditions’ in the Obergefell decision. It grounded the right to same-sex marriage firmly in its case-law and whilst it interpreted the concept of liberty broadly, interpretation is part of the Court’s task and cannot be said undermine the people’s democratic will. As a result claims of ‘judicial policymaking’ should be rejected.
This blog was originally scheduled to be entitled, “The importance of a plan”, but when I began to think about it, whilst some people would advocate planning every step of our lives, experience has taught me that despite our best efforts, we can’t always stick to our plans. Life has a terrific tendency to throw us curve-balls and as we grow we often develop new ideas and perspectives that cause us to deviate from our original plans. That’s why I believe it’s important to have an overall goal; that way, no matter how much our original plans change, we have a firm grasp of what general direction we are heading in and can make decisions about what steps to take in order to get there.
What Type of Goal?
The first question you might ask is what exactly do I mean when I talk about a ‘Goal’? I believe that it’s a word that, although used by many people in everyday parlance, is worth re-defining here in order to get a clearer picture of exactly what is meant. The Oxford online dictionary defines the word goal as:
“The object of a person’s ambition or effort; an aim or desired result”
What’s immediately apparent is that this is a very broad definition. This reflects the way that I also believe we should set our life goals – as broadly as possible. Broad goals allow us to be flexible in how we pursue them and prevent us from becoming disheartened if everything doesn’t quite go to plan. To explain this idea, take the goal of “wanting to help needy people”. Now it’s clear that there are a number of ways in which we can help needy people: We can for example, make that goal an integral part of our working lives by becoming an aid worker, social worker or teaching in disadvantaged schools; or we could pursue that goal as an extra-curricular activity outside of our working hours, such as volunteering time working in a soup kitchen or providing free advice at a legal centre. We can see here that whilst there are countless possibilities of things that we can do, as long as our goal remains broadly to ‘help needy people’, we will be well on our way to achieving it by perusing any number of these avenues.
In contrast, let’s take the example of a goal such as, “I want to be the head legal advisor at Amnesty international”. Besides the fact that it may transpire that Amnesty International may no longer exist by the time that we have built up the credentials to apply for such a post, there is always the possibility that in a years’ time you might want to work for a different NGO, or maybe there is another head legal advisor at that time and the post isn’t open to applicants. In this instance there would be no possible way of achieving your goal and this failure is likely to lead to disheartenment and a loss of morale.
It’s important to note here that I am not ruling out ambition. If your goal is to be Prime Minister or to work for the United Nations then that’s perfectly fine and I would personally encourage ambitious goals, I would only caution against too narrowly defined major life goals, as these don’t permit flexibility and may lead to disappointment if not attained.
How many Goals?
This question seems really to be on a par with ‘how long is a piece of string?’. My answer is that we can set as many goals as we like in relation to the various different aspects of our lives. People may want to set goals for example, to help them manage their time better, to lose/gain weight or to learn a new language. In this sense, setting achievable goals can help in every area of our lives. Nevertheless, I’ve found that just having one overall life goal helps me to really focus all of my outlook and energies on achieving it. Too many of these risks clouding our perspectives and confusing our direction which can be akin to having no goal at all.
Whilst one major life goal is good to have, It’s a good idea to have many ‘sub-goals’ to help you achieve this goal. These should be more defined then your overall goal and it’s important that these are concrete and realisable so that you may track your gradual progress. Again by way of example, let’s stick with our goal of wanting to help needy people. Now we may decide that the way that we want to do this is through aid work. We might start by researching a list of non-governmental organizations that do the specific type of work that we are interested in, then set the short term sub-goal of securing an internship at one of these NGO. Once we have achieved this goal, we can then re-set our goals or if we do not achieve it we can alter our sub goal. The fact remains however that this is all helping us move closer to that broad overarching goal.
Protecting the Goal
Finally it’s important that we do everything we can to protect our goals. Whilst many people we come across might aid us in pursuit of our goals and may be able to offer advice and guidance, it’s just an unfortunate fact of life that not everyone will be inclined this way. Some people, who perhaps haven’t been successful at achieving their goals or perhaps who haven’t thought about setting any clearly defined goals for themselves, may cast judgement on our goals or sometimes attempt to convince us to abandon them altogether. Whilst I would not advocate simply dismissing the views of a host of individuals with a great deal of experience in the area that you are interested in, it’s worth taking people’s opinions in relation to your goals with a pinch of salt or sometimes better, simply not to disclose them to others at all. It’s better to live life in the pursuit of the goal and not achieve it, then to let the opinions of others stop you trying.
I will end with a quote from Andrew Carnegie regarding the importance of setting a goal:
If you want to be happy, set a goal. Goals commands your thoughts, liberate your energy and inspire your hopes. – Andrew Carnegie
As the dust settles on the spectacle of Sochi and Brazil goes into overdrive for its preparations in the build up to this year’s Fifa World Cup and the 2016 Olympics, the spotlight is now beginning to shine on another nation which has its sights firmly set on international glory for 2022. This nation is the Arab Emirate of Qatar, which has embarked on a policy of aggressive expansion and rapid infrastructural development in the run up to the olympic games. Qatar, one of the wealthiest states per capita in the world, is so far estimated to have invested a staggering ($)200bn into construction and infrastructure projects for the event and whilst it is without doubt that a large part of this capital has been raised by profits from the countries main export commodities, gas and oil, the nation’s finances have also been been bolstered in recent years by a multitude of investments into several Western nations and corporations . Qatari investments in the West have not been entirely one sided however; many western nations and corporations have also sought to improve relations and increase trade with Qatar with the nations low rates of tax being a major pull factor. The reciprocal investments between Qatar and the West have increased dramtically in recent years and it is predictied that they will increase yet further in the years leading up to 2022, as states and corporations seek to cash-in on the revenue sure to be generated by the first World Cup to be held in the Arab World.
It is not just the opression of homosexuals in Qatar which seems to have evaded the criticism of many Western Governments and corporations however. Recently, Google announced that it would be investing a reported ($)14 million into the East-African State of Uganda in efforts to capitalize on increasing internet usage within the country . Whilst this announcement has been praised by some as a means of promoting growth through enhancing the technological capabilities of the nation, for many, there has nevertheless been dissapointment that Google, who took such an active stand against the mistreatment of homosexuals in Russia, seem to have been entirely reticent on the grave repression of homosexuals within Uganda. On the 24 February 2014, Ugandan President, Yoweri Museveni gave assent to what is termed the ‘Anti-Homosexuality Act’ The stated purpose of this act is to “prohibit any form of sexual relations between persons of the same sex; prohibit the promotion or recognition of such relations and to provide for other related matters.”Whilst Provisions proscribing the death penalty for certain homosexual offences were dropped from the Bill just prior to its enactment, the legislation nevertheless imposes a 14 year prison sentence for homosexual acts and a life sentence for anyone found guilty of what is termed “aggravated homosexuality.” Upon its enactment the law caused a storm of controversy with several organizations and prominent figures issuing statements excoriating the Ugandan legislative for passing it, however there has to date been no official response to the legislation from Google, who continue to push ahead with investment plans within the nation.
In addition to Google’s investments in Uganda, The Coca-Cola Company have recently sought to increase trade with Ethiopia and have made a ($)20 million investment into a new glass bottling factory in one of the nation’s most rural regions. LGBT rights in Ethiopia are notoriously scarce and Like in Qatar and Uganda, homosexual Acts are expressly criminalised under Ethiopian Law. At a national conference in June 2012, a host of Ethiopian government officials, civil representatives and religious leaders congregated to formally declare their opposition to LGBT rights and reportedly condemned homosexuality as a “Western epidemic”. Despite Ethiopia’s stance on homosexuality, Coca Cola have issued no statements nor produced any similar advertisements aimed at criticizing the the nation.