A legal action starting tomorrow is an opportunity for the High Court to accept that equality is gender neutral, writes Fionnuala Ní Aoláin
The High Court will hear arguments tomorrow in a case that is a historic opportunity to recognise the equal status and rights of all citizens in the context of their most intimate and profound relationships. In the case taken by Katherine Zappone and Anne Louise Gilligan against the Revenue Commissioners, the couple are seeking legal recognition for their legal Canadian marriage in Ireland.
The case presents an instance of choice for our legal system and for our Constitution, specifically the choice to be relevant, tolerant and non-discriminating. It is an opportunity for our Constitution to be read as a "living instrument" - speaking to contemporary Irish society in a way that meaningfully acknowledges the ability of law to give status and value to families and intimate relationships in their many forms.
Other jurisdictions such as the Netherlands, Belgium, Canada, Spain, South Africa and certain US states have grasped similar opportunities. The High Court now has the same chance.
This case is fundamentally about rights. At the heart of the protections set out in the Irish Constitution, and similarly in a range of international human rights treaties, is recognition of the equal worth and dignity of the human person.
That worth is premised on a principle of equality and non-discrimination. From the Universal Declaration of Human Rights to the European Convention on Human Rights we understand that equality is at the heart of any legal system that professes human rights values as part of its political self-identity.
Equality is not just an abstract concept. It has specific application and specific meanings. It applies across the range of human relationships and activities that are regulated by the laws of state. Equality also applies to marriage and the legal status given to same-sex relationships by our society.
Under the 1937 Constitution, the heterosexual marital family is the only officially recognised family structure under Irish law. Thus, article 41 states that the family is the "natural primary and fundamental unit group of Society".
This legal definition offers not just symbolic status to one kind of family unit, but creates the basis from which a range of social goods are offered to families and relationships that fit the definition. It functions to exclude benefits, privileges and status from relationships that do not come within the definition.
In short, it discriminates profoundly. The need to revisit this provision was recognised by the government-appointed Constitution Review Group when it recommended in 1996 that the constitutional articles giving the marital family special protection should be deleted. The group suggested that family rights should be protected on a more inclusive basis. The right to marry is such a basic human right that it was included in the Universal Declaration of Human Rights in 1948. European states also recognised its centrality to human dignity by including it as Article 12 of the European Convention on Human Rights signed in 1953.
Clearly, in the postwar era these treaties articulated highly traditional notions of the marital relationship, essentially only protecting relationships between heterosexual men and women.
The courts that enforce and interpret international human rights treaties have, however, made considerable headway in recent years by redefining and reshaping the protections and status given to a variety of family forms. In particular, the European Court of Human Rights has sought to ensure that discrimination is prohibited on the basis of marital status.
When our laws refuse to give same-sex relationships the same legal status and entitlements as heterosexual relationships they profoundly deny individuals rights to recognition of their most intimate humanity.
There is no doubt that the recognition of this fundamental equality places a burden on the High Court. But as an interpretative task, in balancing the centrality of the constitutional rights at stake against other considerations, aided by considerable comparative jurisprudence and international human rights law norms, as well as a sober and realistic assessment of the complexity of family forms in Ireland at the start of the 21st century, the court has many legal allies. Moreover, the court can be ambitious and seek to make the Constitution relevant and responsive to the real and lived marriages of same sex-couples as represented by Katherine Zappone and Ann Louise Gilligan.
Equality is not an abstract concept. Equality means equally valuing the lives of persons who choose to marry one another freely on the basis of love and commitment for life - whether heterosexual or same sex.
The court has a historic choice to make - a choice that commits our legal system to equality or one that entrenches and confirms prejudice and discrimination. In 2006 we have to hope that equality really matters to our courts and to our citizens - and that the High Court chooses to be on the side of equality.
Prof Fionnuala Ní Aoláin is a former Human Rights Commissioner and is associate director at the Transitional Justice Institute in the University of Ulster and holds the Dorsey and Whitney chair in law at the University of Minnesota Law School