The greatest trial lawyer of the last century was undoubtedly Clarence Darrow. He was often described as just a lucky country bumpkin, or a ‘lucky old son of a […]’ in the vernacular of the time. More than a lawyer though, he became the exemplar and paradigm of secularism in America, a voice of reason pitched against a cacophony of superstition and religious hysteria.
By the time of the Scopes Trial in 1925 Darrow was widely regarded as a dog who had had his day. The case involved a young schoolteacher who had shown the temerity to teach Darwinism in the Deep South: Dayton, Tennessee to be precise. It is dramatised in the play, and film, Inherit The Wind (1960), which at times plays fast and loose with the facts for dramatic effect.
It was actually a test case; the arrest had been staged by the American Council of Civil Liberties in order to bring a showdown with the fundamentalism that was creeping into American politics. The schoolteacher had volunteered for the task.
The American Council for Civil Liberties wanted a clean-cut preppie lawyer, but they got Darrow. Why? Because they were bereft of funds and the Baltimore Herald, under its legendary editor H.L. Mencken, insisted. Mencken was the greatest muck-racking controversialist in the history of journalism, a uniquely acerbic wit, perhaps only rivaled by that of Christopher Hitchens. They were paying for the trial, and would call the shots.
So Darrow dragged his weary bones into the Lions’ Den of the Deep South, assailed by a plethora of ailments which would ultimately kill him, but not just yet. His opponent was an old adversary, and if not quite a friend, someone for whom he had a degree of respect. Enter three time unsuccessful candidate for the Presidency of the United States: William Jennings Bryant.
Darrow and Bryant’s careers shared a certain trajectory in that both rode a populist and progressive wave, involving the enfranchisement and protection of the ordinary working man both in the great cities and rural heartlands. Where they differed markedly was that Bryant was also a religious fanatic, who railed against the imposition of northern secular values on the Southern states. They were in league with one another in seeking to improve the lot of the poor in life, but fell out over their understanding of the origins of life. The divisive issue was Charles Darwin’s Theory of Evolution, as it remains today.
It was really a show trial with a foregone conclusion. The question of guilt was never in doubt. America itself was in the dock. The Baltimore Sun ensured an international spotlight, while the new medium of radio provided an immediacy to the coverage, foreshadowing the role of television in the OJ Simpson Trial seventy years on.
With the continuing culture wars in America, the case has never been of merely historic interest. It also has a relevance to the understanding of events in contemporary Ireland, which sees a similar confrontation. The new battleground is the forthcoming referendum to repeal the 8th Amendment to the Irish Constitution, which says:
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
In the recent case of M & ors -v- Minister for Justice & ors the Supreme Court of Ireland gave the green light for the abortion referendum to proceed. But this is just the opening salvo in a long campaign. The forces of obscurantism and absurdity are mustering. No doubt the roughhouse Youth Defence will swing into action, while more polite academics and lawyers, but with similar extreme views, will work out the stratagems and ruses. The X Case of 1992, where a fourteen-year old girl, pregnant as a result of statutory rape, was initially denied by the High Court the right to travel to the UK for an abortion but given leave on appeal by the Supreme Court to do so, will seem like a squall by comparison to the force of this hurricane.
So what is going to happen?
First and foremost the recent decision paves the way for the referendum. I expect, in sequence, the following to ensue:
1. There will be a challenge to the wording and content of the referendum on the bases that people are either being misled or that it is deliberately vague. This will fail, as it always does, but another publicity bun fest is guaranteed.
2. There will then be deep scrutiny of all funding sources and avowed support, either explicit or implicit, by governmental structures, as well as any other interference in the process to engineer an outcome.
This may, or may not, succeed, but could delay the Referendum process, require a redraft, or if after the event, lead to an application for the invalidation of the result, which will also prove unsuccessful.
Thus it will fail, but further publicity will ensue.
But I think there is a paradigm shift. This is the final battle, the last hurrah.
What can the so-called Catholic intelligentsia do to avoid the democratic of the people will if the obvious legal route proves fruitless, as it ought?
There is one last avenue available in my considered legal opinion, and that is to argue that the right to abortion violates the right to life itself.
This is precisely what the Supreme Court denied in the M & ors, as they confined the protection of the unborn to the clause likely to be deleted through the referendum. So wider arguments under the substantive right to life can seemingly be negated. This seems settled, but no doubt challenges are being considered to the absence of protection of life arising out of the probable deletion of the Eighth Amendment. Once legislation is formulated, a multiplicity of challenges seem inevitable.
A harbinger of this appears in an Irish Times article by (14/3/18) by one of the leading ideologues on the Pro Life side William Binchy. He suggests that the forthcoming referendum repealing the Eighth, if passed, will open the door to unfettered abortion-on-demand, akin to the regime in the United States under Roe v Wade; but he dangles the opportunity for a further challenge too, quoting from Chief Justice Frank Clarke’s judgement in M & ors: ‘the State is entitled to take account of the respect which is due to human life as a factor which may be taken into account as an aspect of the common good in legislating.’
A never ending saga in short.
Then there are the informal tactics and strategies that will be used. These include variations on a theme and, potentially, violence. The clamour is going to get worse and worse. Protests, attacks on the court, demonstrations outside Dail Eireann, civil unrest, intimidation, shock tactics, framing, the kitchen sink.
The Catholic Church still runs most maternity hospitals, and has put the kibosh on the implementation of the X case for over twenty years. So the league of decency will endure, and democracy will be frustrated.
This is no longer a Secular Age. Religious fundamentalism in all parts of the world is on the rise. In Ireland there are well placed boyos in the judiciary, and the once proud voices of secularism are no longer heard: Susan Denham has retired, and Adrian Hardiman passed away. All contacts with pious judges will be utilised to disrupt the passage of this referendum. But in the light of the present decision I still predict this will prove fruitless.
The world will be watching as they were in Dayton Tennessee. The outcome will expose Ireland for what it is in many respects: a grubby Third World, sexually-hysterical, religiously-disturbed state.
This outcome will be different however. The abortion argument will prevail. The Religious Right will lose. Or at least they will lose this vote. But let me sound a cautionary note.
A drawn out Referendum campaign will keep attention away from the real burning issues of housing, homelessness and rising inequality. Who cares about the right to choose, after all, if you cannot afford to eat?
Those funding the litigation might do well to focus on the quality of life of the living rather than the inception of life itself.
It seems to me that this victory for progressives will be deeply ambiguous. Yes, a right to choose will be established, but at what cost?
There is merit, I grudgingly concede, in the argument that abortion as a lifestyle choice fits with a Neoliberal paradigm. An extension of consumerism that ignores the gathering storm of economic catastrophe brought on by rising poverty and ecological meltdown.
Political talents and revenue are being devoted to pursue fruitless opposition to a done deal: fight the good fight for abortion, and forget about the war against homelessness.
I just wonder who is going to reprise the role of Darrow or William Jennings Bryant, and, above all, who is going to get the role of Mencken, the prince of gutter press journalists in this morality play.
There is a wider struggle at work, in defence of reason and the Enlightenment, which the vacancy of Neoliberalism ignores. Thus, the legendary Darrow asked in the Scopes Trial:
Can’t you understand? That if you take a law like evolution and you make it a crime to teach it in the public schools, tomorrow you can make it a crime to teach it in the private schools? In addition, tomorrow you may make it a crime to read about it. Soon you may ban books and newspapers. Then you may turn Catholic against Protestant, and Protestant against Protestant, and try to foist your own religion upon the mind of man. If you can do one, you can do the other. Because fanaticism and ignorance is forever busy, and needs feeding. And soon, your Honor, with banners flying and with drums beating we’ll be marching backward, BACKWARD, through the glorious ages of that Sixteenth Century when bigots burned the man who dared bring enlightenment and intelligence to the human mind!
Noam Chomsky recently claimed that the Republican Party is the ‘most dangerous organization in world history’. He has corrected many interviewers who mistakenly assume he meant ‘the most dangerous organization in the world today’. Given his precision with language, what seems an outlandish statement, is clearly one he takes seriously.
The Paris Agreement on Climate Change has been criticized for being not nearly stringent enough to succeed in keeping temperature rise below two degrees Celsius over pre-industrial averages. It is earnestly hoped by environmentalists that it is a stepping-stone before a more robust deal. Fat chance, as Trump’s administration goes about dismantling even that fig leaf of modesty.
Chomsky also mentioned in a recent BBC Newsnight interview that there has to be a connection between the denial of the science, and the fact that nearly 40% of the American public believe the Second Coming will occur by 2050.
In his illuminating Seven Brief Lessons on Physics (2014) Carlo Rovelli chides humanity for failing to draw the lessons necessary for survival:
I believe our species will not last long. It does not seem to be made of the stuff that has allowed the turtle, for example, to continue to exist more or less unchanged for hundreds of millions of years; for hundreds of times longer, that is, than we have even been in existence. We belong to a short-lived genus of species. All of our cousins are already extinct. What’s more, we do damage. The brutal climate and environmental changes which we have triggered are unlikely to spare us. For the Earth they may turn out to be a small irrelevant blip, but I do not think that we will outlast them unscathed – especially since public and political opinion prefers to ignore the dangers which we are running, hiding our heads in the sand. We are perhaps the only species on Earth to be conscious of the inevitability of our individual mortality. I fear soon we shall also have to become the only species that will knowingly watch the coming of its own collective demise, or at least the demise of its civilisation.
The passage points to the differences between ideas informed by science, and those grounded in fundamentalist interpretations of religion. Science sees humanity for what we are in the universe, rather than being its centre and purpose. Far more terrifying than this is the preacher who refuses to accept that we might just be an irrelevant blip in the universe, and sees the Earth as something created for us to make hay with. Not only that, but many milenerian Christians rapturously await the demise of civilization and the end of days.
It seems odd in these circumstances that that such effort should be made on behalf of the human unborn, when they assume it is all going to be over imminently.
Human beings commonly display a desire for transcendence in this our cruel world. Marx stated in his ‘Critique of Hegel’s Philosophy of Right‘ that ‘Religious suffering is the expression of real suffering and a protest against real suffering. He admitted that ‘Religion is the sigh of the oppressed creature, the heart of a heartless world, and the soul of soulless conditions. It is the opium of the people.
He goes on, however, to argue that the ‘abolition of religion as the illusory happiness of the people is the demand for their real happiness. To call on them to give up their illusions about their condition is to call on them to give up a condition that requires illusions. The criticism of religion is, therefore, in embryo, the criticism of that vale of tears of which religion is the halo.’
The Religious Right is to an extent, a predictable outcome of the social and economic “vale of tears” in our time, although their collusion with Big Business in the United States is truly horrifying. It certainly helps that Genesis with it assumption of man’s dominion over the Earth permits a scorched earth economic policy.
Lost in all of this is the message of Pope Francis, and others, for Christian socialism and environmental responsibility; a worldwide enforcement of social and economic rights to food, shelter, health care and housing. I am decidedly agnostic about the existence of God. It is religious fundamentalism, extremism and rapacious greed that I despise.
In fact the church may have its own battle between the Neoliberals and Christian socialists. The smart money is on the former winning out. Pope Francis may suffer the same fate as Pope John XXIII.
I once represented a middle aged woman named Carmel Doyle who as a five-year-old recited a bible story which the Catholic Church made millions out of from an Oscar-nominated film called Give Up Yer Aul Sins. Yet the child, now a poor adult, would have received nothing had I not fought her case.
It seems to be the inception, not quality of life, that matters to the hierarchy of the Catholic Church: let them eat cake and dream of the afterlife.
The Religious Right have resorted to murder when necessary. I think of Gods Banker Roberto Calvi hanging off Blackfriars bridge; Pier Paolo Passolini the Marxist and Atheist film director murdered on a beach near Rome; the collusion for decades between ‘Christian’ ‘Democrats’ in Italy and the mafia, to the advantage of the Vatican; but most are killed by a thousand cuts.
So let us commence a life watch. The abortion life watch juxtaposed with the homelessness outside the doors of the court where constitutional issues are finely disentangled as the social structure unravels. While Rome burns, progressives will fiddle amid the gladiatorial circuses of the forthcoming referendum.
Neoliberalism has no problem with abortion. There are, after all, far too many of us. I maintain that it is important that a woman should not be compelled to endure a pregnancy against her will, but it is permitted by economic elites as way of controlling population, without the troublesome necessity of infanticide through poverty. That was a solution advocated satirically by Jonathan Swift in his A Modest Proposal, a vital cautionary tale for these dangerous times.
Featured Image: Marina Azzaro