The High Court's refusal to recognise the Canadian marriage of Catherine Zappone and Ann-Louise Gilligan will not bring an end to this issue. Whether or not they appeal to the Supreme Court, Ireland in common with most other developed countries, will see a growing campaign for the right of same-sex couples to marry.
The138-page judgment of Ms Justice Elizabeth Dunne provides a springboard from which this debate can go forward. In essence it states that, as yet, the move internationally toward recognising the right of same-sex couples to marry is very much a minority one.
Ms Justice Dunne pointed out that various solutions had been found to the situation same-sex couples find themselves in with Belgium, the Netherlands and Spain, along with British Columbia in Canada where Drs Gilligan and Zappone were married, permitting same-sex marriage. A number of jurisdictions have a registration scheme for co-habitees, both same and opposite sex. Others give some form of recognition without registration. No discernable pattern exists, she concluded.
Drs Zappone and Gilligan stressed in their case that they were not seeking civil registration, but the recognition of their marriage, with all the social support as well as financial security that brings. Such recognition would impact on the definition of marriage and requires a close examination of its function in society, including its role in providing a secure environment for the bringing up of children, similar to the kind of examination of marriage that preceded the two divorce referendums. It is entirely understandable that the judge found such far-reaching conclusions to be a matter requiring political rather than judicial action.
Much evidence was debated over days about the impact of same-sex parenting on children. Ms Justice Dunne found that the evidence that there was no impact was inconclusive at the moment, but equally found that there was no evidence of a negative impact. She also endorsed the view put forward by experts that homosexuality was an entirely normal variable among human beings, and that discrimination and stigmatisation led to disadvantage and sometimes ill-health. She acknowledged the financial disadvantages experienced by couples like Dr Zappone and Dr Gilligan, and pointed out that these also related to heterosexual couples.
As the Law Reform Commission pointed out over a week ago, heterosexual couples differ from homosexual ones in that they may marry and enjoy the benefits this status brings. Homosexual couples may not. As yet the number of people who have registered same-sex cohabitation with the CSO through the census is small, but is very likely to grow. The real insecurity and anguish this brings was eloquently highlighted by the two women who brought this case to the courts.
They have done the Irish public a service in the dignified way they presented their case and by highlighting the issues involved.