High Court rules against lesbian couple

Court report:Judge finds that right to marry here is confined under the Constitution to the union of a man and woman

A lesbian couple do not have the right to marry here under the Constitution because that right is confined to the union of a man and woman, the High Court has ruled.

The refusal to permit same-sex couples to marry here does not breach provisions of the European Convention on of Human Rights, the court also held.

Under the 1937 Constitution, Ms Justice Elizabeth Dunne said, marriage was to be confined to persons of the opposite sex. This had been reiterated in legal decisions up to 2003 and was not "some kind of fossilised understanding of marriage". Nor did she accept there was some kind of changing "consensus worldwide" in support of same sex marriage.

Ms Justice Dunne yesterday delivered a 138-page reserved judgment dismissing the challenge by Dr Katherine Zappone and Dr Ann Louise Gilligan aimed at securing the right to marry here or having their marriage in Canada recognised as valid here.

While rejecting the couple's claim to a right to marry here, the judge also noted that the issue of the rights and duties of cohabiting persons was very much to the forefront of public discussion here, through the work of the Law Reform Commission and others.

She noted civil partnership legislation had not yet been introduced and hoped that the legislature would act sooner rather than later in introducing measures to reduce difficulties experienced by cohabiting couples.

Dr Zappone, a public policy consultant and member of the Human Rights Commission, and Dr Gilligan, an academic, had brought their action against the Revenue Commissioners and the State. It ran for eight days in October. After Ms Justice Dunne gave her judgment yesterday, she adjourned the case to next week when costs will be addressed.

Dr Zappone and Dr Gilligan and a number of supporters were in court. Afterwards, Dr Zappone said they were "extremely disappointed" on "a human and personal level". Dr Gilligan said she wished to thank the judge for her "considered judgment" and the "graciousness" with which she had approached the hearing.

They would have to reflect further before deciding whether to appeal to the Supreme Court.

The court had heard that Dr Zappone and Dr Gilligan married in Canada in 2003. They claimed the failure by the Irish authorities to permit them to marry here or to recognise their Canadian marriage breached their rights under the Constitution, the European Convention on Human Rights and the European Charter of Fundamental Freedoms. They also claimed the failure by the Revenue Commissioners to treat them for tax purposes in the same way as a heterosexual married couple breached their rights.

Ms Justice Dunne accepted the State's arguments that the right to opposite-sex marriage is derived from the Constitution and is thus a justification for any distinction between the position of the plaintiffs and married couples.

The judge noted that in her evidence, Dr Zappone had conceded that she and Dr Gilligan were not, in relation to taxation, treated any differently from heterosexual couples who were not married. There was no discrimination between homosexual and heterosexual cohabiting couples as far as the tax regime was concerned.

Ms Justice Dunne also said there must be "some reservation" about the conclusions drawn by a psychiatrist, Prof Richard Green, to the effect that children raised by same-sex couples were no worse off from an emotional or any other relevant perspective than the children of heterosexual couples.