The judge in the Zappone-Gilligan "gay marriage" case has determined there are limits to reinterpreting the Constitution according to changing attitudes, writes Ursula Kilkelly.
Yesterday, an Irish court made its first pronouncement on the issue of same-sex marriage, adding its view to that of courts all over the world. In finding that same-sex couples are not entitled to marry within the terms of the Constitution, the High Court has taken a narrow view of marriage as the union of a man and a woman.
The case involved two women, Katherine Zappone and Ann Louise Gilligan, who have lived together as a cohabiting couple in a lesbian relationship since 1981. On September 13th, 2003, they married in Vancouver, British Columbia, Canada, where recognition has been given to same-sex marriage.
Subsequently, they sought to be treated as a married couple for their tax affairs. When this was refused, they took judicial review proceedings which resulted in yesterday's judgment in the High Court by Miss Justice Elizabeth Dunne.
Before the court were two main issues: the first was whether the right to marry inherent in the Constitution encompassed the right to same-sex marriage.
If not, the second question arose as to whether the constitutional position was incompatible with the terms of the European Convention on Human Rights, an international human rights treaty given further effect in Irish law under the European Convention on Human Rights Act 2003.
The answer to both was no.
With respect to the constitutional definition of marriage, it was put to the court by the couple that the Constitution was a "living instrument" which should be interpreted in line with modern social and legal conditions. This, combined with what was described as a "changing consensus" around the world in favour of recognising the rights of same-sex couples to marry, favoured a broad interpretation of the constitutional definition of marriage.
While the judge accepted the Constitution is a document capable of evolution and change, in her view there were limits to this approach which meant that marriage could not be "redefined" in this way. In reaching this conclusion, she rejected the plaintiff's argument that practice around the world supported an emerging consensus towards same-sex marriage.
Three European countries - Spain, Belgium and the Netherlands - together with Canada, South Africa and the US state of Massachusetts have introduced same-sex marriage, while other countries represent a greater diversity in approach.
The judge also held that Article 41 (dealing with the family) and Article 42 (dealing with education of children) had to be borne in mind in considering the definition of marriage. This led her to conclude there were two justifications for limiting the definition of marriage to people of the opposite sex: the first was the duty in Article 41 to guard the institution of marriage from attack; the second was the welfare of children.
On the issue of the welfare of children, the judge accepted there is no evidence children raised by same-sex parents suffered any adverse effects. Nonetheless, she went on to support a cautious approach which was necessary, in her view, until such time as longitudinal research allows for a more conclusive finding on the issue.
Notwithstanding that much of the evidence put before the court concerned this aspect, it is arguable the children dimension is a distraction from the core issue, ie public recognition and legal protection for same-sex relationships in the form of the right to marry.
From a legal perspective, the connection has been broken between the right to marry and the right to found a family in both Irish and international law. This is reality also for many people who marry but do not have children.
Of greater significance, perhaps, it is important to acknowledge that children are already living in families where their principal carers are of the same sex and currently they do not enjoy the same protection as those in marital families. For those seeking to have children, current legal provision allows one member of such a couple to seek to adopt a child alone, and same-sex couples can and do access fertility services in other countries to have children born into the relationship.
In this regard, it is submitted that using the welfare of any potential children to support denying same-sex couples the right to marry unhelpfully confuses the issue.
These questions relate not to the right to marry, but to the separate right, such as it exists, to have a family. In the latter case, this right is by no means absolute and the rights and best interests of the children must be paramount.
With respect to the duty to guard marriage from attack, the judge offered little to support the view that expanding the definition of marriage to include same-sex couples had such negative consequences for the institution.
Nor did the judgment consider, either under the Constitution or the European Convention on Human Rights, the grounds on which the differential treatment suffered by same-sex couples, who unlike heterosexual couples cannot marry, was justified.
One of the disappointing parts of the judgment, therefore, is that it does not really address the issues at the heart of the case. In particular, there is no clear evidence of what legitimate aim is being served by denying same-sex couples the right to marry, and moreover, whether excluding them from marriage is a proportionate way of achieving that aim in all the circumstances.
Notably absent from the judgment is a detailed consideration of what is at stake, emotionally, legally and financially, for those in such relationships who are currently denied legal recognition and protection.
On a positive note, the judgment acknowledges that same-sex couples, like those in cohabiting relationships, can suffer hardship in the event of death or serious illness of their partners. The judge concludes by hoping legislative changes to ameliorate these difficulties will not be long in coming, but hands to the legislature the job of identifying how this should be achieved.
What is clear now is that the Government has some room to manoeuvre in legislating in this area. While an appeal to the Supreme Court might delay legislation, it is nonetheless important the Supreme Court have the opportunity to act as final arbiter on this fundamental issue. The outcome of the case would not be a foregone conclusion, not least because the international consensus in support of same-sex marriage has grown further since the hearing in this case.
There is also evidence of strong public support for such reform.
Ursula Kilkelly is a senior lecturer in law at University College, Cork