OPINION/Fintan O'Toole: I was fascinated by the tributes and obituaries prompted by the death last week of the former chief justice, Tom O'Higgins. They were, as they ought to be for a man who played such a prominent role in public life for 60 years, extensive.
They dwelt on his geniality, his social conscience, his dedication to public service - all fine and noble qualities, which he possessed in abundance.
The real fascination, though, lay in what was not said, the absences that were, in their own way, eloquent descriptions of the continuing inability of contemporary Ireland to recognise where it has come from. In the image we now have of ourselves, it is simply inconceivable that a man of Tom O'Higgins's innate decency might also have been capable of cruel prejudice.
Twenty years ago next month, Chief Justice O'Higgins delivered the majority verdict in the case taken by David Norris, seeking a declaration that sections of the Offences Against the Person Act, 1861, and of the Criminal Law Amendment Act, 1885, were unconstitutional.
These acts of the Victorian parliament at Westminster were extraordinarily oppressive. The first made male homosexual intercourse punishable by life imprisonment. The second, under which Oscar Wilde was prosecuted, made other forms of homosexual sex between consenting adults in private punishable by up to two years in prison with hard labour.
The effect of these laws was not just that gay men risked very severe sentences if they had sex with other gay men, but that male homosexuality itself was criminalised.
David Norris's case was in essence very simple. He was not sexually attracted to women, so marriage was not open to him. He believed that he had, nevertheless, a right to love and companionship, and that these rights ought to be upheld by the Constitution's guarantees of equality before the law, of privacy and of bodily integrity. Tom O'Higgins rejected Norris's case on grounds that were frankly theocratic: "From the earliest days, organised religion regarded homosexual conduct, such as sodomy and associated 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."
He cited the Preamble to the Constitution as proof that, in adopting that document, the Irish people, "so asserting and acknowledging their obligations to our Divine Lord Jesus Christ, were proclaiming a deep religious conviction and faith". Since Jesus, in his view, was against homosexuality, it followed that the Constitution could not protect homosexual acts.
Even in its own terms, this was a pitifully shallow argument. The law did not, in general, punish heterosexual citizens for adultery or for extramarital sex, even though both were regarded as sinful by the church.
The church, moreover, did not approve of lesbian sex, but there was no law against it. The absurdities were, in fact, pointed out by Mr Justice Niall McCarthy in his dissenting judgment: "If a man wishes to masturbate alone and in private, he may do so. If he and another male adult wish to do so in private, may they not do so? No, each commits an offence under Section 11 of the 1885 Act. If a woman wishes to masturbate in private, she does not commit an offence. If two women wish to do so in private, neither of them commits an offence. If a man and a woman wish together to do so in private, not being married to each other, neither of them commits an offence. In such latter circumstances, the act committed by the woman upon the man may be identical with that which another man would commit upon him, save that his partner is a woman."
Intellectually, therefore, Tom O'Higgins's ruling was ridiculous. Its practical consequences were also devastating. It coincided with the arrival AIDS in Ireland, a time when lives depended on the lifting of the veil of ignorance and secrecy surrounding homosexuality. The State's attitude to the gay community was caught in a fundamental contradiction: threats of imprisonment on the one hand, advice about safe sex on the other.
What is fascinating about the response to Tom O'Higgins's death is that all of this is entirely absent. It would, after all, be easy enough to acknowledge it as a dark thread in the otherwise bright tapestry of achievement and public service. That even this seems impossible suggests a deep uncertainty in the Irish self-image. It is apparently impossible for the bright, shiny new Ireland to acknowledge that, just 20 years ago, our chief justice could argue that some citizens didn't have rights because Jesus didn't approve of them.
We don't want to know that pluralist democracy is a very recent arrival in Ireland and perhaps one that is not yet entirely at home. We prefer to think that only barbaric Islamic states attempt to put their own religious prejudices into law. Acknowledging how close our own State has been to that mentality might help us to see the dishonesty of dividing the world into the civilised democracies and the mad fundamentalists.