The Gay Divorcee

by Kieran Healy on March 4, 2004

Divorce was declared illegal in Ireland by the “Constitution of 1937”: A referendum to repeal the ban was proposed in 1986 and soundly defeated. Almost two-thirds of the electorate voted against it. In November 1995 a second divorce referendum was put to the country. That one passed, by a margin of “just over nine thousand votes”: in a total valid poll of 1.62 million. I had just started graduate school at “Princeton”: that Autumn and remember the slightly frozen expressions of fellow grad students when I told them about the constitutional debate raging at home. Most of them were under the impression that Ireland was an advanced capitalist democracy located in Europe, fabled continent of liberal attitudes toward sex and generous social provisions for all. I decided not to upset them further with stories of my “college years”:, which coincided with the time of the “Great Condom Wars”: in Ireland.[1]

The rhetoric of the Irish divorce debate is strikingly similar to what we’re hearing today about gay marriage in the United States.

In the gay marriage debate, many argue that a fundamental fact about the institution of marriage is that it is between a man and a woman. Less than ten years ago in Ireland, just shy of half the voting population took the view that, both as a matter of definition and a point of law, marriage was fundamentally for life. Then as now, they argued that it was the foundation of the social order. Divorce was a plague — a favorite phrase of the Catholic hierarchy, which asked the faithful to vote No. The institution of the family would be destroyed by it. There would be a “disastrous backlash”:, with women and children suffering immensely. And of course it was a “grave offence against natural law”: The posters for the No campaign had slogans like “‘Hello Divorce, Goodbye Daddy'”: and “You Will Pay.” The “social fabric” would be torn apart if it were permitted.

On the “Yes” side, the idea that it was only fair and sensible to let people have a second chance was the main plank of the campaign. After all, Irish marriages didn’t stop failing just because divorce was illegal. The country already had a system of family courts, a body of law governing separated spouses, and so on. The simplest and best argument for legal divorce — that in the eyes of the state marriage is a special kind of contract between two people that can be dissolved if one of them so wishes — didn’t have much traction, as I remember, mainly for that reason. The right to divorce is not the right to leave your spouse, it’s the right to remarry someone else. The “No” side thought separation ought to be enough. In the end, Ireland passed “the most restrictive”: divorce law in Europe. Couples seeking divorce must live apart (though not necessarily in different houses) for a minimum of four years before becoming eligible to seek a divorce.

Ireland is in many ways a very different society from ten years ago, with legal divorce only one of the engines of change. I imagine there are many people who voted No at the time who think that the country’s social fabric has been pretty much shredded. The thousands of people who now obtain divorces every year are likely to disagree. I think it’s plausible that in terms of sheer pressure on the social order, the legalization of divorce is a _much_ more serious event than the prospect of gay marriage. Civil divorce reconfigures property rights, redistributes assets and income, creates a multiplicity of new kin ties and makes one of the most important life choices much more open-ended for everyone. And on each of these dimensions, legalizing divorce directly and indirectly affects far more people than legalizing gay marriage. In short, those who campaigned then against legalizing divorce in Ireland had a much stronger case than those who campaign now against legalizing gay marriage in the United States. While the moral arguments are essentially the same in both cases,[2] the potential consequences for the social order are clearly more far-reaching when it comes to divorce. If you think a society can sustain the stress that divorce puts on it, then you should think the same about gay marriage. If you don’t, then you should forget about the problem of gay marriage and get to work rolling back the much more serious threat of legal divorce.

fn1. Go back another ten years and you get things like the Family Planning Act, which allowed the sale of contraceptives by prescription only, to married couples only, for “bona fide” family planning purposes only. This was the famous Irish solution to an Irish problem. And don’t even ask about ten years before _that_.

fn2. If you think that moral or visceral abhorrence of the idea of divorce just can’t be as strong as abhorrence of the idea of homosexuality, I refer you back to the Irish case.

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John Isbell 03.04.04 at 12:47 pm

I’m just now becoming a Catholic catechumen, as it happens, here in IN. The woman’s first personal question, after finding out I’d been baptized Anglican, was whether I was divorced. She didn’t ask about condom use.


Russell Arben Fox 03.04.04 at 12:55 pm

As I’m sure you’re aware Kieran, there are, in fact, quite a few organizations in the U.S. (and not all of them religious groups) which have taken the position that no-fault divorce laws have caused at least as much harm as good, and are attempting to either repeal or supplement them. Their claims are not wholly without merit.


Theophylact 03.04.04 at 1:15 pm

It might also be pointed out that although Jesus takes no position on the question of homosexuality, he comes down strongly against divorce.


Maria 03.04.04 at 1:39 pm

Just a couple of historical points to supplement Kieran’s excellent post;

Prior to 1937, the constitution of the Irish Free State permitted divorce (though I think the provision may have been removed by amendment before the new constitution came in – the constitution of 1922 – 1937 could be amended by parliament, not a referendum of the people.)In many ways, e.g. the role of women, our Free State constitution was far more ‘advanced’ than DeValera’s 1937 Bunreacht na hEireann. But Dev’s crowd thought of it as a corrupt anglo-saxon document despoiling the virtue of the Real Ireland, and washed it away with the trenchant statement of 1930s catholicism we know and love. And we’ve been amending the thing ever since.

Secondly, as I remember the 1986 referendum on divorce, it failed largely because of fears among the farming community about inheritance rights. The worry (whipped up by the anti crowd) was that after a divorce, the ungrateful, interloping ex-wife would get half the farm. And there is no force as conservative as a threatened land-owner. This is the reading I had of it from our Taoiseach at the time anyway.


Aidan Kehoe 03.04.04 at 1:51 pm

Funnier still is that there was a court case after the 1995 referendum where it was concluded that the massive, partisan government funding for the pro-divorce case was illegal.

The referendum result was allowed stand because, conceivably, all that financial support could have had no influence whatsoever on how people voted. Which mystified me, at least–why should the government fund any PR/publicity campaign, if it may have no influence at all?


Joshua W. Burton 03.04.04 at 2:03 pm

“The Bible contains six admonishments to homosexuals and 362 admonishments to heterosexuals. That doesn’t mean that God doesn’t love heterosexuals. It’s just that they need more supervision.” — _Lynn Lavner_


Jeffrey Kramer 03.04.04 at 2:32 pm

Although I’m sure my views on divorce, same-sex marriage, etc. would make Dennis Prager list me as one of those ‘secularist fanatics’ he wants to have a war against, I worry a little that an argument which basically says “Look, you keep on predicting social breakdown: when divorce was legalized, when contraception was legalized, when abortion was legalized, when obscenity standards were loosened, when pornography laws were struck down, when (etc., etc.); and you’ve been wrong every time!” has to sound, from the viewpoint of a cultural conservative (not just a fanatic bigot), a lot like the joke about how “I know this drug isn’t addictive because I’ve been taking it every day for fifteen years without any sign of addiction.”


Mrs Tilton 03.04.04 at 2:45 pm


divorce was indeed outlawed well before Dev peered into his heart to bring forth the Bunreacht; in 1925, I think, prompting one of Yeats’s more resounding (if also rather condescending) speeches and, no doubt, making poor Tom Kettle spin in his grave.


Russell Arben Fox 03.04.04 at 3:19 pm

Dead on, Jeffrey.


Jeremy Pierce 03.04.04 at 3:26 pm

“That doesn’t mean that God doesn’t love heterosexuals. It’s just that they need more supervision.”

Or just that it wasn’t as big an issue in ancient Israel as it is now in the U.S., and therefore there wasn’t as much need to say much about it. That was certainly the case in Jesus’ time in Palestine.

It seems odd to me that anyone outside of a theocracy would have laws against divorce. The problems leading to divorce would still be there. That’s why I do think Bush’s desire to encourage and promote marriage at an earlier level are better ways to address the problem, even if people are going to have a hard time figuring out just how to do that.


harry 03.04.04 at 3:43 pm

There’s divorce and divorce right? Different laws and different contexts give different meanings to divorce.

No-fault divorce in the US context has not been a particularly good thing for some people (though it has probably been a very good thing for others). Just restricting attention to children — lots of children would be better off if their divorcing parents refrained from divorcing, not least because they would be saved from being raised in poverty. (Some of this effect could be diminished by rigourous enforcement of egalitarian dissolution settlements, eg by legally forcing spouses and divorced spouses to pool their income, and social security and retirement contributions. My guess is that if people knew such enforcement was in the offing men would be much less inclined to abandon marriages, and women would be much more inclined to).

Other children would be better off if their parents would split. Growing up in a wealthy poisonous family situation is probably worse than growing up with an adequately well off single mother (or father). The problem is that changes in divorce law impact different people differently, and we don’t know who is going to be made better and worse off in advance.

The availability of divorce makes something more readily available to married couples: assurance that one’s spouse continues to be married to one out of love and affection rather than out of compulsion. My guess is that easy divorce benefits some loving married couples while it simulateously leads to fragmentation of marriages that might otherwise have survived intact (for the good of both adults and all or at least some of their children).

Does anyone know whether easy divorce increases the marriage rate? It ought to, right? (because at any level of risk aversion a marriage one can readily get out of is much less of a risk than one you can’t get out of).


Henry 03.04.04 at 3:49 pm

Mrs. T. – I think Maria’s point is that divorce wasn’t outlawed in the constitution (I’d have to look this up to be sure, but my memory is that Maria is dead right on this). Yeats’ hectoring was in response to a bill introducing it.

Anyhows, I think Kieran is fudging the truth of the matter here. As observers noted at the time, the divorce referendum was pushed through by the gay lobby, or more precisely by the “wife-swapping sodomites”:; a particular sub-tendril of the fascist octopus Internationale devoted to the overthrow of morality and the corrosion of social norms everyhere.


Joshua W. Burton 03.04.04 at 3:49 pm

_…in Jesus’ time in Palestine._

Anachronism alert. That would be “Jesus’ time in Judaea,” as _Syria Palaestina_ is a de-Judaizing coinage from the mop-up of the Hadrianic revolt, 135 CE. Pliny, Tacitus, Strabo (and of course Josephus and the evangelist Luke) use “Judaea” exclusively, while Matthew simply calls it “the land of Israel.”

Philistia (the five cities: Gaza, Ashqelon, Ashdod, Eqron, Gat) was a meaningful term in the time of Caesar Tiberius, but there’s no record of Jesus ever traveling anywhere near there.


The Curmudgeonly Clerk 03.04.04 at 3:50 pm

I’m not so sure that your thesis—that recognition of divorce is more significant (legally or otherwise) than recognition of gay marriage—is sound. Because the debate has focused primarily on moral sentiment, a serious pragmatic consideration of the consequences of recognizing gay marriage has largely not taken place.

Marriage confers a large number of benefits under the law, for example. A recent article over at Reason also suggests that recognition of gay marriages might have more farreaching legal consequences than has been acknowledged. The number of legal claims advanced in the wake of Lawrence v. Texas certainly suggests that the recognition of one right leads to the assertion of a plethora of others. Indeed, we are probably only debating gay marriage now because Lawrence, as Justice Scalia indicated in dissent, was a watershed opinion.

Now one could readily concede all of the above and even consider it a good thing. That is, none of the foregoing points logically compels one to oppose the recognition of homosexual marriage. However, I think that it is somewhat dubious to advance a consequentialist defense of gay marriage that rests on the assertion that the consequences are few or relatively insignificant when compared with other social and legal changes (including the recognition of divorce).


mc 03.04.04 at 3:57 pm

It might also be pointed out that although Jesus takes no position on the question of homosexuality, he comes down strongly against divorce.

Hmm, actually, I think the idea was to come down strongly against repudiation. Which is different from consensual divorce as we know it today, and as didn’t exist back then. Repudiation was the right of the male to turn his wife into a legal and social outcast. It was definitely not consensual. It wasn’t: they divorced. It was: he divorced her. That’s the situation he was addressing. There’s no point comparing the idea of marriage at the time of Jesus to today’s. The whole society was different.

And, anyway, Jesus was not a lawmaker.


des 03.04.04 at 4:08 pm

Henry wrote:

As observers noted at the time, the divorce referendum was pushed through by the gay lobby, or more precisely by the wife-swapping sodomites; a particular sub-tendril of the fascist octopus Internationale devoted to the overthrow of morality and the corrosion of social norms everyhere.

Where do I sign up?


Mrs Tilton 03.04.04 at 4:21 pm


my intention was to supplement, not gainsay, what Maria wrote. You’re (both) quite right that the (first) constitution didn’t prohibit divorce. (But Yeat’s ‘we are a not a petty people’ speech was in response to a bill introducing not divorce, but divorce’s prohibition.)

To be honest, I don’t know (and am too lazy to look up) how divorce was dealt with from 1922 to 1925. Prior to independence I believe divorce was obtainable in Ireland only through a private bill in the Westminster parliament. Perhaps from 1922 one would have had to apply to the Oireachtas. It is an interesting question – did anybody in fact divorce in Ireland during 1922-25?

But as a wife-swapping sodomite I concur entirely in your analysis of the referendum.


Henry 03.04.04 at 4:30 pm

Mrs T. – yeah, I meant a bill outlawing it of course (Atrios seems to have made a similar goof in his post on the subject).


Joshua W. Burton 03.04.04 at 4:33 pm

_It might also be pointed out that although Jesus takes no position on the question of homosexuality, he comes down strongly against divorce.

Hmm, actually, I think the idea was to come down strongly against repudiation._

OK, I wasn’t going to get into this, but as long as we’re here….

Jesus was (Matthew 19:3-9, see also Matt. 5 and Mark 10) making a technical argument against the school of Hillel (normative Pharisaic jurisprudence) and in favor of the minority ruling of the school of Shammai. The issue was the reading of “ervat davar” (JPS – unseemly thing; KJV – some uncleanliness) in Deuteronomy 24. Could a man write a bill of divorcement only for adultery, as the “original intent” school of Shammai held? Or did the penumbra encompass a general (male) right of divorce for reasons of personal distaste, as the liberal-activist school of Hillel had held? Jesus came down with the strict constructionists, to the surprise of his disciples.


Maria 03.04.04 at 4:34 pm

Thanks Henry and Mrs. T. My (increasingly fuzzy)recollection was that Yeats’ famous speech was prompted by a bill prohibiting divorce, heretofore obtainable as we all agree, and that the speech was also a rallying cry/swan song for the Anglo Irish members of the upper house who were being phased out. From around that point on, the Anglo Irish Ascendancy withdrew from politics, reasoning correctly that they were no longer wanted. FWIW, I think they were sorely missed.


Ken 03.04.04 at 6:08 pm

“My guess is that if people knew such enforcement was in the offing men would be much less inclined to abandon marriages, and women would be much more inclined to).”

Since women abandon marriages more often than men do today, you’ll probably end up with a further increase in the incidence of divorce.

On the other hand, a truly equitable split would make lots of guys better off than they are under the current regime.

“The posters for the No campaign had slogans like ‘Hello Divorce, Goodbye Daddy’ and “You Will Pay.” ”

Sounds like the most dead-on accurate political posters I’ve seen in quite some time, at least if the US experience is anything to go by.


Tom 03.04.04 at 6:22 pm

“-snip – irish family planning act – . This was the famous Irish solution to an Irish problem.”

I thought the “Irish solution to an Irish problem” was clingfilm on the operating organ, at least if the “Sunday World” stories at the time were true.


drapetomaniac 03.04.04 at 6:57 pm

Since women abandon marriages more often than men do today,

I’ve heard this but can anyone cite research to this effect?


harry 03.04.04 at 7:45 pm

bq. On the other hand, a truly equitable split would make lots of guys better off than they are under the current regime.

Depends what you mean by ‘truly equitable split’. I mean something that leaves all parties (ex-husands and wives, and children issuing from the marriage) equally far below the previous joint standard of living until the children reach the age of majority. If that’s what ‘truly equitable’ means, then sure, lots of men might be better off, but the vast majority of divorced men would be worse off, and the vast majority of divorced women and children of divorces would be better off than today. Financially, that is.

bq. Since women abandon marriages more often than men do today, you’ll probably end up with a further increase in the incidence of divorce.

Like drape I’ve heard this a lot, but never seen it documented. Anyway the conclusion doesn’t follow — whether we’d see more or less divorce depends on the reasons why people who currently think about divorcing but don’t do it don’t do it, which we probably don’t know that much about. Though people are forever surprising me on this site. DO we know?


Keith M Ellis 03.04.04 at 8:26 pm

Count me in the group that supports gay marriage and opposes easy divorce. I think it should be much more difficult in the US than it is currently to both get married and get divorced. Additionally, I support group marriages and other marriages that are currently prohibited.

I guess this means that pretty much everyone disagress with me.


Tom 03.04.04 at 8:59 pm

If women are more likely than men to “abandon marriage,” doesn’t that suggest that marriages which have already failed are more beneficial to husbands than wives (since neither spouse would abandon a marriage that was working like they’re s’posed to)? And if so, doesn’t this suggest an argument for “easy divorce”?


DJW 03.05.04 at 2:39 am

Wow, the divorce issue really sets off my oft-dormant inner libertarian. Am I the only one who thinks a fairly high divorce rate might be a good thing? That is, an indication that people are not allowing contracts whose content has substantively already been voided (if you don’t love anymore, you’re more likely than not breaking your vows, no matter how hard you try to live a lie to deny it) to actually go ahead and formalize it? Instead of attacking no-fault divorce, let’s get rid of this toxic expectation that people in their 20’s can reasonably be expected to predict how the people that will occupy their bodies several decades later will feel, and stop treating it like some sort of moral failure when people grow apart. I appreciate sentimentalism at the cinema, but let’s not legislate it.


Keith M Ellis 03.05.04 at 2:50 am

Marriage is misunderstood as a contract between two people. It’s a public commitment made to a community. Marriage shouldn’t be hard to get into and hard to get out of because of some silver-screen romanticism—quite the reverse, I think.


DJW 03.05.04 at 3:58 am

But the public commitment part isn’t legal marriage*, it’s the social/religious side of the institution. You can get married, legally, without it. And as I suggested, once you’re no longer in love, the vows of most of those social and religious ceremonies I’ve ever attended have been de facto violated.

I should be clear about what I’m critical of. First, the notion that it makes sense to hold people to commitments that demand and promise emotional attachment that they made so long ago that they hardly could have been predicted how they might feel now. Second, the notion that marriage is only and necessary appropriate if it succeeds until the death of one party, no matter how long. To disallow no-fault divorce suggests that such a divorce necessarily implies error, of a either a moral and practical sort. Divorcees are already branded with this social stereotype, but that’s hardly a reason to extend the insult into the realm of law. What’s so crazy about the notion that people sometimes grow and develop their identities in ways that render them incompatible that we ought to legally hassle them when these developments lead to the end of a relationship?

*yes, I know legal marriages require a witness in most states, but this formality/technicality can be dispensed with by calling the judges secretary into the office, so forgive me for taking it with a grain of salt.


Thomas 03.05.04 at 5:40 am

djw, I think you misunderstand the marriage commitment. It’s not a commitment to feel certain things, but to do certain things. I can’t make much sense of the thing you describe–what’s the point of making a non-binding commitment to feel a particular thing, with the understanding that when one no longer feels it, the commitment ceases? I’ll love you til I don’t, honey! If someone offered that as commitment, I’d say we have a different understanding of the word.

harry, why would you suppose that making marriage easier to get out of would make people more likely to get married? Doesn’t it make marriage both less dangerous to those entering and less valuable to those entering? I mean, someone receiving djw’s commitment can’t feel that he or she’s won some prize. What’s the point in building a life together if there’s not a good likelihood that there’s going to be a life together? BTW, don’t we have the answer on the empiric question? Aren’t marriage rates down?
I think you’re right to suggest that marriage laws that bind can be seen as paternalistic in some instances: there are some couples who split under no fault divorce who would be better off if they didn’t split. Is that the sort of thing that can be quantified? Should it be weighed in the balance in determining what kind of laws we should have?


Keith M Ellis 03.05.04 at 6:58 am

Thomas: I very much agree with your response to djw. The “I’ll do what I feel like when I feel like it” ethos is pretty orthogonal to “commitment”.

What is not being discussed these days is something I find quite interesting, and sort of sad. It’s illustrated by Andrew Sullivan’s progression rightward these last fifteen years(1). Today, gay marriage is the cause celebre, but it wasn’t too long ago that Sullivan couldn’t get anyone on the left to take it seriously. “Marriage? Why should we worry about gays being allowed to participate in a regressive insitution like marriage?” and “What’s the point of a piece of paper?”

What’s sad is that the activists and the intellectuals apparently didn’t actually ask many gays and lesbians what they wanted or what was important to them, because, it appears, marriage is on the list. Why is it? Because the “piece of paper” is the embodiment of what is essentially a social act, a creation of identity exactly at the boundary between self and society. By restricting gays and lesbians from marriage, our laws are excluding gays and lesbians from an ancient and powerful participation in shared community. This is why it matters to many or most gays and lesbians and this is also why some so strongly oppose it.

(1) I think Sullivan felt badly betrayed by those he naturally supposed were his allies. It’s happening to him again; which just proves that Sullivan is very naive.


DJW 03.05.04 at 3:11 pm

I don’t expect many people to see things my way, so I’ll try to make my point clearly one more time and then I’ll stop belaboring the point. When I attend wedding ceremonies, I here a bunch of vows. In each of these cases, those vows go well beyond simply promising a series of actions. The promises to love, honor, cherish, and etc. clearly are meant to embody action and intention. Behaving as though you love your spouse even though you’ve secretly grown to despise (or simply stop loving them) them suggests you’re not living up to your vows, no matter how you behave. I agree that the institution of marriage also contains a promise to make a serious effort to not let a state of affairs reach this point, through a variety of methods including honest, open communication and therapy and no doubt many others. But what if this growing apart is the natural consequence of the unforeseen consequence of the development of the personalities of the parties involved? I don’t subscribe to a conception of human development in which we’re able to successfully predict the consequences of our development on our future emotional states. The very concept of growth presupposes some uncertainty about where we’re going to end up.

What I meant to critizise when I suggested there’s a misplaced sentimentalism to the opposition to no-fault divorce, I mean to criticize those who would essentially love as some sort of ethereal, mystical “timeless bond” between two people. I suppose this isn’t a necessary feature of the argument against no-fault divorce, but I suspect this ideal often lurks behind a fair amount of bad attitudes about divorce.

It seems to me that a ban on no-fault divorce largely duplicates an already existing social shaming pattern which is pretty effective. When I look around at my friends and acquintences, I see far more people who stay together in troubled marriages (sometimes trying to improve them, but more often not) for a host of reasons, the social stigma of divorce being the strongest one than I see divorces, let alone divorces that seem premature or inappropriate. Perhaps that’s an idiosyncracy of my circles, but it’s worth noting that these are secular, cynical people for the most part. The institution itself seems to contain an extralegal and often powerful check on no fault divorces.

I’ll close with a practical argument against banning no-fault divorce–in a country like the US, many people are going to get divorced anyway if they really want to. This will lead to fraudulent claims of emotional distress, etc. in order to obtain a divorce, which seems good for no one–it will both trivialize our legal system and facilitate the social stigma of divorce as a moral and personal failing. Of course a successful ban on no fault divorce cause people to stay married unhappily, which will in many cases likely lead to events that facilitate “fault divorce” (infidelity, etc.) thus making the whole process long and unnecessarily painful.

I’m much more open in theory to measures to make marriage harder in the first place, but it’s hard for me to imagine examples of such a policy that are likely to be effective and not overly intrusive. I’m open to having my mind changed about that, as with everything.


Ray 03.05.04 at 4:52 pm

As someone who was involved in the Yes campaign back in 1995, I don’t think the No campaign was really that much like the anti-gay marriage campaign in the US. The argument about society falling apart was pretty much lost at that stage, especially given that Church authority had been given a good kicking in the previous couple of years and with it the idea of the golden age of morality just passed. Legal separation was pretty widespread, and it was relatively easy to make the argument that the only effect of removing the divorce ban would be to let people remarry. The No campaign mainly tried to pick holes in the divorce legislation that would be introduced, arguing that the financial costs would be high, that there were particular problems with X, Y, and Z, and that we should all just hang on a while until the Dail got some _good_ legislation together…

Of course, I live in Dublin, and the ‘moral decay’ argument would never work in this Sodom-on-the-Liffey. There may well have been different arguments used outside the chuch gates in Ballydehob, and on the doorsteps of pensioners’ houses. But from here it looks like the arguments being used against gay marriage are the ones the anti-divorce campaigners weren’t confident enough to use in public in 1995.

(Still, only 6,000 votes. That was too fucking close.)


Maria 03.05.04 at 6:09 pm

Way too close Ray. I remember sitting in the pub with a few friends the next day discussing the fact that it literally was a vote in every ballot box that made the difference.

And bringing it up a few years later in a graduate seminar on how it’s irrational for any voter to think his or her vote is pivotal. Theoretically, there’s no such thing as a pivotal vote, but it certainly didn’t feel like it in 1995.

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