It was with some considerable dismay that I read Fintan O'Toole's column on the late Tom O'Higgins last Tuesday, writes Kevin Myers.
It left me with the feeling of someone who has put aside the best and juiciest piece of steak until last, and has the fork prongs poised in the air, ready to harpoon the morsel, just as a passing diner reaches over, grabs it and pops it in his mouth.
For I had planned to say almost word for word what he said. However, I claim prior possession, because it wasn't the first time that piece of meat had been snatched away from my mouth. Years ago I attempted to write such a column, attacking O'Higgins's famous defence of the laws against male homosexuality. But I was prevented from doing so on the legal opinion that to criticise a ruling of the Chief Justice as I was doing could be considered to contempt of court or libel, with predictable consequences. And that opinion was unquestionably right. So no column.
And so for 10 years after one of the most fat-headed legal rulings in the history of this state, male homosexual deeds remained criminal. Fintan listed the theocratic "reasons" O'Higgins gave: they were beneath contempt then; they are simply unbelievable now. For he simply reached into the Bible and came to the conclusion that all organised religions regarded homosexual acts with "a deep revulsion as being contrary to the order of nature, a perversion of the biological functions of the sexual organs and an affront both to society and to God". In addition to citing the preamble to the Constitution and our consequent duties to Jesus Christ as justification for introducing religious law in Ireland, he also dabbled in mumbo-jumbo aetiology. He said homosexuality spread venereal disease. (And of course, nothing else does.) Thus the Irish State was right to outlaw male homosexual deeds.
One voice rescued this Republic and its Supreme Court from this shameful fatuity - a voice that was soon so tragically, both for this country and for its jurisprudence, to be silenced. Niall McCarthy's dissenting judgment was a scalpel through the pious humbug and sanctimonious drivel which O'Higgins had uttered.
He had not merely uttered it; he had pronounced it ex cathedra, and it was essentially immune to non-legal criticism, not merely for the decade that it remained the law in Ireland, but for the 10 years succeeding, until its author was dead.
But there is another question raised by all this. Why was the Supreme Court ruling upon a matter which should have been legislated for by the Oireachtas? Because Senator David Norris had taken it there, for our political establishment was too cowardly to confront the Catholic Church on this matter (even though, as we now know, the Hierarchy was covering up a positive banquet of violent buggery within its own ranks).
The law was finally changed 10 years ago, not through some political initiative within Dáil Éireann but because the European Court of Human Rights had ruled, on the foot of a petition by David Norris, again, that Irish laws against homosexuality constituted a flagrant breach of his human rights.
So, in 1993, Máire Geogeghan Quinn introduced a new Bill to remove the two Victorian Acts which outlawed sexual deeds between two or more men. But even then, our legislators had to show they could still crack a sexual whip. Part of the new act made it as illegal to kerb-crawl looking for sexual favours as it was to solicit sexual partners for money in public.
It was a pathetic, contemptible attempt to show the world that Dáil Éireann was on the side of the sexual angels. And that dismal (no doubt painful) double-kneed and simultaneous genuflexion to Rome and to Strasbourg represented the Dáil's last attempt at reform of our antiquated laws on sexual morality.
The shocking thought is that, left to its own devices, and without the intervention of European courts, Dáil Éireann would probably have done nothing. Worse, while AIDS was cutting a murderous swathe through Irish life, a primary prophylactic against its spread - the humble little condom - was still outlawed. The nadir came in 1991 with the prosecution of Virgin Megastore for selling a condom, resulting in the company being fined £500 and warned that heavier fines, and imprisonment, would result if it broke the law again.
We were thus living in a nightmare world in which our sexual conduct was to be decided upon entirely by wigged mullahs. Admittedly, this was caused in large part by the abject surrender of our legislators, but the right of a judge to be moral arbiter over our private lives, and drawing on largely non-legal sources for inspiration, was never more powerfully put than in the O'Higgins ruling of 20 years ago. It remained immune to serious criticism until his death.
It was a landmark ruling in more ways than one, not so much in the sexually prohibitive nature of the finding - for that in time was mitigated by another batch of lawyers, in Europe - as in the way it represented the surrender of individual and political power to the courts. Since then, we have handed over much of the governance of the country and processes of inquiry to lawyers. The deeds of the legal profession and thoughts in the various tribunals now fill our newspapers far more than do the works and thoughts of our elected politicians.
Tom O'Higgins was an important man all right; but for all the wrong reasons.