Canadian lesbians lose case to have marriage recognised in Ireland

A lesbian couple, who were married in Canada in 2003, have lost their attempt in the High Court to have their marriage recognised in Ireland.

Dr Katherine Zappone and Dr Ann Louise Gilligan argued that the failure to recognise their marriage breached their rights under the Irish Constitution, the European Convention on Human Rights, and the European Charter of fundamental freedom.
This argument was rejected by Ms Justice Elizabeth Dunne, who said she could not agree with their argument that marriage under the Irish Constitution (pdf file) includes same-sex marriage.

The judgment is 139 pages long and can be downloaded from the couple’s website for those who are interested in the legal arguments but I’ve decided to keep it “short” and just summarise the conclusion of Justice Dunne, concentrating on the main issues.

Equality before the taxman:
In her evidence Dr. Zappone conceded that she and Dr. Gilligan are not treated any differently in relation to taxation provisions from heterosexual couples that were not married. She also agreed that in 1937 when the institution of marriage was given constitutional protection the consensus as to what marriage involved was a marriage between people of the opposite sex. She believed that that view has now changed to the extent that there is now an acceptance of the normality of the sexual identity of people who are homosexual …

In any event, it is accepted that there is no discrimination between homosexual co-habiting couples and heterosexual co-habiting couples so far as the tax regime is concerned

Gay couples as parents:
The phenomenon of parenting by same sex couples is one of relatively recent history. The studies that have taken place are consequently of recent origin. Most of the studies have been cross sectional studies involving small samples and frequently quite young children. I have to say that based on all of the evidence I heard on this topic that I am not convinced that such firm conclusions can be drawn as to the welfare of children at this point in time. It seems to me that further studies will be necessary before a firm conclusion can be reached. It also seems to me having regard to the criticism of the methodology used in the majority of the studies conducted to date that until such time as there are more longitudinal studies involving much larger samples that it will be difficult to reach firm conclusions on this topic.

It is worth noting having said that, however, that none of the studies carried out to date have demonstrated any adverse impact on the children involved in the particular studies. Some differences have been noted. Some differences in the quality of parenting have been noted (I might add not adverse differences) and there was in one study some indication that there may be a slight effect on gender orientation. However, the sample in the particular study was so small that again one would be wary of placing any reliance or drawing firm conclusions from that particular study. I think however it is important to note that there was no evidence of any kind tendered to the court to demonstrate that children brought up by a same sex couple or a single homosexual parent are adversely affected by the family structure in which they are raised

There is simply not enough evidence from the research done to date that could allow firm conclusions to be drawn as to the consequences of same sex marriage particularly in the area of the welfare of children.

Same-sex marriage covered by the Constitution?
Does the right to marry inherent in the Constitution encompass the right to same sex marriage? If not, is the Constitutional right incompatible with the provisions of the European Convention on Human Rights?

It has been accepted in this case on behalf of the plaintiffs that one of the common law grounds of exclusion based on lack of capacity is that the two people seeking to marry are of the same sex. There is also now a legislative prohibition introduced by the Civil Registration Act of 2004. It was also accepted that insofar as the institution of marriage is described within the Constitution that what was always understood by the framers of the Constitution was the traditional understanding of marriage …

However the plaintiffs rely very much on the U.S. and Canadian authorities to argue that the Constitution is a living instrument and that accordingly the right to marry should be considered to have changed so as to embrace the concept of same sex marriage by reason of the existence of a changing consensus. Particular emphasis was placed on the Canadian decision in the Halpern case as to the “living instrument” argument.

Counsel for the plaintiffs had referred to changes in our understanding of the nature of marriage and the fact that the institution of marriage as we now understand it has undergone changes over the years. In particular there have been changes in relation to capacity. As an example reference was made to the Loving case in the U.S. In that particular instance a justification for the criminal prohibition on inter-racial marriage was defended on the basis that the prohibition was part of God’s plan to keep the races apart. It did not succeed. The point was made that the boundaries of the constitutional right to marry, should not be determined by an appeal to a conventional dictionary definition …

In the Loving case Warren C.J. stated:-
“The freedom to marry has long been recognised as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man’, fundamental to our very existence and survival. … To deny this fundamental freedom on so unsupportable basis as the racial classifications embodied in the statute, classification so directly subversive of the principle of equality at the heart of the fourteenth amendment is surely to deprive all the State citizens of liberty without due process of law. The fourteenth amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

It was noted by Marshall J. in Goodridge commenting upon Loving as follows:-
“The courts opinion could have rested solely on the grounds that the statute discriminated on the base of race in violation of the equal protection clause. But the court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the due process clause, the freedom to marry … Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this court concerning the right to marry is of fundamental importance to all individuals.”

The court in Goodridge then struck down the statute which contained the restriction on same sex marriage on the basis that it did not meet the rational basis test for due process or equal protection.

I have set out in some detail the analysis of the U.S. decisions conducted by Mr. O’Donnell on behalf of the defendants. It is clear that the judgment of the majority in the Goodridge case has not found wide favour . Indeed since that judgment a number of other States have come to a different conclusion, most recently, the court in the Californian case of Woo v. Lockyer. In that case one of the points clearly made was that the alleged discrimination was different to that which was found to exist in the Loving v. Virginia case. It was noted:-
“We are not dealing with a suspect classification such as race. Therefore, under the correct legal standard (rational basis review), we must uphold the opposite sex requirement for marriage if it is supported by any plausible reason. (see p. 57 judgment of McGuiness P.J.)”
These authorities are interesting in many respects. They are dealing with similar definitions of marriage and the assertion of a right to marry requiring a redefinition of the traditional understanding of marriage as is the case in these proceedings. However as I have already noted many of the decisions are based on equal protection clauses.

Many of the arguments in those cases put forward on behalf of the proponents of same sex marriage have been relied upon in the arguments in this case also. There is a limit to the assistance that can be drawn from them given the different constitutional framework applicable in this jurisdiction but the approach taken to the proposed re-definition of the freedom to marry is of interest.

Nonetheless, I have a difficulty in this case in accepting the arguments of the plaintiffs to the effect that the definition of marriage as understood in 1937 requires to be reconsidered in the light of now prevailing standards and conditions …

Marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex. That has been reiterated in a number of the decisions …

I fully appreciate that changes have been made; indeed, some far reaching changes have been made to the institution of marriage as it was understood in 1937. Changes in relation to capacity in respect of the marriage age have been made and the most fundamental change of all has been the change in relation to the indissolubility of marriage.

I accept that the Constitution is a living instrument … but I also accept … that there is a difference between an examination of the Constitution in the context of ascertaining unenumerated rights and redefining a right which is implicit in the Constitution and which is clearly understood. In this case the court is being asked to redefine marriage to mean something which it has never done to date …
The right to marry contained in the Constitution is undoubtedly not an express right but is clearly implicit from the terms of Article 41. It is not a case where the court requires to ascertain a previously unenumerated right as the right to marry falls squarely within the terms of the Constitution. The definition of marriage to date has always been understood as being opposite sex marriage. How then can it be argued that in the light of prevailing ideas and concepts that definition be changed to encompass same sex marriage?

Having regard to the clear understanding of the meaning of marriage as set out in the numerous authorities opened to the Court from this jurisdiction and elsewhere, I do not see how marriage can be redefined by the Court to encompass same sex marriage. The Plaintiffs referred frequently in the course of this case to the “changing consensus” but I have to say the there is little evidence of that. The consensus around the world does not support a widespread move towards same sex marriage.

There has been some limited support for the concept of same sex marriage as in Canada, Massachusetts and South Africa together with the three European countries previously referred to but, in truth, it is difficult to see that as a consensus, changing or otherwise.

In this jurisdiction, as recently as 2004, s. 2(2)(e) of the Civil Registration Act was enacted. That Act sets out what was previously the common law exclusion of same sex couples from the institution of marriage. Is that not of itself an indication of the prevailing idea and concept in relation to what marriage is and how it should be defined? I think it is …

The final point I wish to make in relation to the definition of marriage as understood within the Constitution is that I think one has to bear in mind all of the provisions of Article 41 and Article 42 in considering the definition of marriage. Read together, I find it very difficult to see how the definition of marriage could, having regard to the ordinary and natural meaning of the words used, relate to a same sex couple

The final point I would make on this topic is that if there is in fact any form of discriminatory distinction between same sex couples and opposite sex couples by reason of the exclusion of same sex couples from the right to marry, then Article 41 in its clear terms as to guarding provides the necessary justification. The other ground of justification must surely lie in the issue as to the welfare of children. Much of the evidence in this case dealt with this issue. Until such time as the state of knowledge as to the welfare of children is more advanced, it seems to me that the State is entitled to adopt a cautious approach to changing the capacity to marry albeit that there is no evidence of any adverse impact on welfare.

European Convention of Human Rights:
Counsel for the plaintiff had submitted that in the European Convention on Human Rights there was no definition of marriage provided …

I find the decision of Potter J. in respect of the arguments put before him on Article 12 to be compelling. I can see no reason for reaching any conclusion different from that which he reached in the Wilkinson and Kitzenger case. It seems to me to set out clearly the position in relation to the right of marriage as identified by the European Court of Human Rights in Goodwin.

Potter J. then went on to consider the role of Article 8 and Article 14 in combination with Article 12. He noted the role of Article 8 which concerns non-interference of the state with a person’s private life, family and home. He commented in para. 87:
“However, any necessity to protect the private or family life of childless same sex couples does not extend to recognising them as married. The obligation to respect private or family life is not apt to bring within the ambit of Article 8 all government policy choices touching upon their status.”

He did go on, however, to note that English law recognised the right of same sex couples to live in a close, loving and monogamous relationship and afforded them the benefits of marriage in all but name by virtue of the Civil Partnership Act, 2004. It was argued in this case that as there is no equivalent to the Civil Partnership act in this jurisdiction could Article 8 mean that in the absence of something akin to that Act that there is a breach of Article 8. Potter J. had himself noted at para. 86 of his judgment as follows:-

The ECHR will not require Member States to establish particular forms of social and legal institution to recognise particular relationships especially in areas of social controversy. As made clear in Johnston v. Ireland (supra), Article 8 does not impose a positive obligation to establish for unmarried couples a status analogous to that of married couples and, in particular, couples who, like the applicant in that case, wished to marry but were legally incapable of marrying.”

Civil Partnership
Early on, in the course of evidence in this case Dr. Zappone noted that the plaintiffs were not seeking the introduction of civil partnership rights. She made it plain that the right sought by the plaintiffs was the right to marry. As I have explained above I do not think that it is a right which exists for same sex couples either under the Irish Constitution or under the European Convention.

It is noteworthy that at the moment, (and some reference has been made to this in the course of submissions) the topic of the rights and duties of co-habitees is very much in the news. Undoubtedly people in the position of the plaintiffs, be they same sex couples or heterosexual couples, can suffer great difficulty or hardship in the event of the death or serious illness of their partners. Dr. Zappone herself spoke eloquently on this difficulty in the course of her evidence. It is to be hoped that the legislative changes to ameliorate these difficulties will not be long in coming. Ultimately, it is for the legislature to determine the extent to which such changes should be made.

Having reached these conclusions, it is clear that the Plaintiffs’ claim for recognition of their Canadian marriage must fail as must the challenge to the relevant provisions of the Tax Code.