Same-sex marriage and the Irish Constitution

Abstract

This paper examines the recent Irish High Court case of Zappone and Gilligan v. Revenue Commissioners and Others, a challenge to the constitutionality of the state's interpretation of the Irish Tax Code vis-à-vis the foreign marriage of a same-sex couple and their right to marry each other under Irish law. The right to marry and the nature of marriage are undefined in the Irish Constitution. Thus, a progressive interpretation may take into account contemporary knowledge of sexuality and sexual orientation and norms of equality and non-discrimination. This paper also discusses the ‘living document’ approach to constitutional interpretation and argues that the High Court misapplied the methodology of Supreme Court Justice Murray in Sinnott v. Minister for Education, a methodology which may offer the means to interpret the Irish Constitution as protecting the right to marry another person of the same sex.

Keywords:

• constitutional interpretation
• right to marry
• same-sex marriage
• Ireland

Acknowledgements

I am deeply grateful to Phil C.W. Chan for his invaluable comments and improvements on my paper at every stage.

Notes

[2006] IEHC 404. For unreported High Court Judgements, see http://www.courts.ie/Judgements.nsf/Webpages/HomePage

[2001] 2 IR 545.

G. Whyte, ‘Some Reflections on the Role of Religion in the Constitutional Order’, in Ireland's Evolving Constitution 1939–1997, ed. P. Twomey and T. Murphy (Dublin: Hart, 1998), 51, 60–1.

J.M. Kelly, Fundamental Rights in Irish Law (Dublin: Allen Figgis, 1967), 57–8. See also M. Gallagher, ‘The Constitution and the Judiciary’, in Politics in the Republic of Ireland, ed. J. Coakley and M. Gallagher, 4th edn (Dublin: Routledge, 2005), 72.

D. Costello, ‘The Natural Law and the Irish Constitution’, Studies 45 (1956): 403, 414.

J.H. Whyte, Church and State in Modern Ireland 1923–1970 (Dublin: Gill & Macmillian, 1980), 51–2. See also W.R. Duncan, ‘Supporting the Institution of Marriage in Ireland’, Irish Jurist 13 (1978): 215, 221.

Article 41(1)(1) states that ‘[t]he State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law’. See The State (Nicolaou) v. An Bord Úchtála [1966] IR 567.

Article 41(3)(1) states that ‘[t]he State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack’.

B. Chubb, The Politics of the Irish Constitution (Dublin: Institute of Public Administration, 1991), 40.

D.A. Martin, A General Theory of Secularisation (Oxford: Blackwell, 1978), 107.

Ibid.

R. Fanning, ‘Mr de Valera Drafts a Constitution’, in De Valera's Constitution and Ours, ed. B. Farrell (Dublin: Gill & Macmillian, 1988), 33, 42.

Ibid.

G. Hogan, ‘De Valera, the Constitution and the Historians’, Irish Jurist 40 (2005): 293.

Ibid., 294.

D. Keogh, ‘The Irish Constitutional Revolution: An Analysis of the Making of the Irish Constitution’, in The Constitution of Ireland: 1937–1987, ed. F. Litton (Dublin: Institute of Public Administration, 1988), 4, 39.

Hogan, ‘De Valera, the Constitution and the Historians’, 301 (referring to the Act of Settlement 1701 [England], the 1814 Constitution of Norway, the 1921 Constitution of Poland, the 1948 Constitution of the Italian Republic, the 1978 Constitution of the Republic of Spain, and the 2001 Constitution of the Hellenic Republic of Greece).

Hogan, ‘De Valera, the Constitution and the Historians’, 301.

Ibid., 302.

Ibid., 303. Article 119 of the 1919 Constitution of the Weimar Republic, quoted ibid., stated that ‘marriage, as the foundation of the family and the preservation and expansion of the nation, enjoys the special protection of the constitution’.

Hogan, ‘De Valera, the Constitution and the Historians’.

Ibid., 306.

Ibid.

G. Hogan, ‘The Constitution, Property Right and Proportionality’, Irish Jurist 32 (1997): 373, 396.

[1974] IR 384.

[1965] IR 294.

Ibid., 312. Article 40(3)(1) states that ‘[t]he State shall guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen’.

Ryan, ibid., 313.

G.W. Hogan and G.F. Whyte, J.M. Kelly: The Irish Constitution, 4th edn (Dublin: Tottel, 2006), 31.

Ibid., 1827.

[1995] 1 IR 321.

Ibid., 333.

Ibid.

[1995] 1 IR 1.

Ibid., 38.

Ibid.

[2001] 3 IR 662.

Ibid., 687.

Ibid., 757.

Hogan, ‘De Valera, the Constitution and the Historians’, 306. His position was supported by the Supreme Court in North Western Health Board.

Hogan and Whyte, J.M. Kelly, 3.

Ibid.

For more recent criticisms, see, e.g., O. Doyle, ‘Legal Validity: Reflections on the Irish Constitution’, Dublin University Law Journal 25 (1993): 56; G.F. Whyte, ‘Natural Law and the Constitution’, Irish Law Times 14 (NS) (1996): 8; M. de Blacam, ‘Justice and Natural Law’, Irish Jurist 32 (1997): 323; S. Mullally, ‘Searching for Foundations in Irish Constitutional Law’, Irish Jurist 33 (1998): 333; A. O'Sullivan and P.C.W. Chan, ‘Judicial Review in Ireland and the Relationship between the Irish Constitution and Natural Law’, Nottingham Law Journal 15, no. 2 (2006): 18.

(1951) 85 ILTR 134.

Ryan, 308. The Supreme Court approved the reasoning of the High Court.

[1985] ILRM 545.

Ibid., 547.

(1866) LR P & D 130.

Ibid., 133.

[1912] 2 IR 445.

Ibid., 458.

Ibid., 459.

Article 50(1) states that ‘[s]ubject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas’.

[1939] IR 413.

[1961] IR 345.

ESB v. Gormley [1985] ILRM 494.

Civil Registration Act 2004, No. 3/2004, Art. 2(2)(e). There was no debate on this paragraph in the Dáil (Chamber of Representatives); see Dáil debates 578, col. 276. The only disquiet raised in the Seanad (Senate) was from Senator David Norris; see Seanad debates 175, col. 652.

[1995] 1 ILRM 491.

Ibid., 495.

Murray, 536.

[1985] IR 733.

Ibid., 754.

[1995] 1 IR 321.

[2002] 3 IR 355.

Ibid., 405. However, the appellate judgment examined the terms of a divorce settlement awarded by the High Court and consequently neither the Chief Justice for the majority nor the dissenting judgments made declarations on the concept of marriage under Article 41.

[2002] IEHC 116.

Ibid., para. 62.

Ibid., para. 65.

Ibid., para. 177.

Ibid., para. 175.

Ibid.

Ibid.

Ibid., para. 131.

Ibid., para. 128.

Ibid.

Ibid., para. 126.

Ibid., para. 101.

The State (Director of Public Prosecutions) v. Walsh [1981] IR 412, 425.

Hogan and Whyte, J.M. Kelly, 8. See also Dillane v. Ireland [1980] IRLM 167.

Ibid.

J. Eardly, ‘The Constitution and Marriage – The Scope of Protection’, Irish Law Times 11 (2006): 167, 168.

Ibid.

B. Walsh, ‘The Constitution: A View from the Bench’, in De Valera's Constitution and Ours, ed. B. Farrell (Dublin: Gill & Macmillian, 1988), 188, 191.

(2002) 35 EHRR 447.

Ibid., para. 99.

A. Lowry, ‘Practice and Procedure under the European Convention on Human Rights Act 2003’, Bar Review (November 2003): 183, 185.

European Convention on Human Rights Act 2003, No. 20/2003, s. 2(1).

Ibid., s. 5(1).

Foy v. An t-Ard Chláraitheoir and Others [2007] IEHC 470. In light of Goodwin and the enactment of the European Convention on Human Rights Act 2003, the petitioner sought to raise new issues in her appeal before the Supreme Court, which instead re-directed her case to the High Court to re-determine the question of compatibility at first instance.

Ibid., paras 100–2.

Ibid., para. 104.

Ibid.

It was, however, mentioned in Zappone and Gilligan, 530, as a caveat to the traditional concept of marriage.

Taxes Consolidation Act 1997, No. 39/1997, Pt. 15, ch. 1. Under sections 1017 and 1019, married persons may elect to be jointly assessed for taxation purposes.

Under section 29(1) of the Family Law Act 1995, No. 26/1995, a foreign marriage may be recognised in Ireland where the applicants are domiciled in Ireland at the date of application or have ordinarily been resident in Ireland for a period of one year ending on that date.

Zappone and Gilligan, 407.

Ibid., 444.

Ibid.

Ibid., 445.

Ibid., 470.

Ibid., 471.

Ibid., 450.

Ibid., 477.

Ibid., 454–77.

Ibid., 479.

Ibid., 483.

Ibid., 484.

Ibid., 483.

Ibid., 501.

Ibid., 484.

Ibid., 530.

Sinnott.

McGee, 319.

Ibid., 310.

Ibid., 318.

Ibid., 319.

Bunreacht na hÉireann 1937, Preamble.

McGee, 319 (emphasis added).

R. Hart, Hart's Rules for Compositors and Readers at the University Press, 39th edn (Oxford: Oxford University Press, 1983).

Walsh, ‘The Constitution’, 195.

Ibid.

Ibid.

[1976] IR 325.

Ibid., 347.

Ibid.

Sinnott, 680. However, Justice Denham subscribed to the ‘living document’ approach in her dissenting judgment and did not explore the ‘living document’ approach in any detail: ibid., 652.

Ibid., 680.

Ibid.

J.M. Kelly, ‘Law and Manifesto’, in The Constitution of Ireland: 1937–1987, ed. F. Litton (Dublin: Institute of Public Administration, 1988), 208, 215.

Ibid.

Ibid.

Ibid.

Sinnott, 582.

Ibid; see esp. Murray J.'s opinion, 682; Hardiman J.'s, 690; Geoghegan J.'s, 720; and Fennelly J.'s, 726.

Ibid., 680.

Ibid., 681.

Ibid., 682.

Ibid.

Ibid.

Ibid. In a similar vein, Justice Geoghegan, ibid., 721–2, explicitly approved the High Court judgment in O'Donoghue v. Minister for Health [1993] IEHC 2.

Sinnott, ibid., 682.

Ibid., 683.

Zappone and Gilligan, 531.

[2003] 1 ILRM 321.

Zappone and Gilligan, 530.

Ibid.

Minister of Home Affairs and Another v. Fourie and Another, 2006 (3) BCLR 355, para. 94.

Ibid.

Ibid., para. 74.

Ibid.

Bunreacht na hÉireann 1937, Preamble.

Murray, 549.

[2004] 3 SCR 698.

Ibid., para. 22.

McGee, 317. See also T. (D.) v. T. (C.).

Zappone and Gilligan, 416, per evidence of Henry Kennedy, Professor of Forensic Psychiatry, University of Dublin.

Employment Equality Act 1998, No. 21/1998, s. 6(2)(d).

Equal Status Act 2000, No. 8/2000, s. 3(2)(d).

Bunreacht na hÉireann 1937, Art. 40(1).

[1997] 2 IR 321.

Ibid., 347.

O'B. v. S. [1984] IR 316; De Burca v. A.G. [1976] IR 38.

Dillane v. A.G. [1980] IRLM 167.

[1983] ILRM 449.

Ibid., 480.

Zappone and Gilligan, 497.

F. de Londras, ‘The Law that Dare Not Speak its Name?’, Irish Journal of Family Law 2 (2006): 24.

Zappone and Gilligan, 533.

Constitutional Review Group, Report of the Constitutional Review Group (Dublin: Stationary Office, 1996), 311.

All-Party Oireachtas Committee on the Constitution, Tenth Progress Report: The Family (Dublin: Stationary Office, 2006), 106.

Equally, Justice Murray himself had previously referred to marriage as opposite-sex-based: T. (D.) v. T. (C.), 405.

However, it is clear that section 2(2)(e) of the Civil Registration Act 2004 is unlikely to be amended in the near future. Parliamentary debate has focused on civil partnership legislation, and the government has stalled debate on the only Bills to date, the Civil Partnership Bill 2004 moved by Senator Norris in the Seanad and the Civil Unions Bill 2006 moved by the Labour Party in the Dáil. Nevertheless, in June 2008, the Department of Justice, Equality and Law Reform published its scheme for civil partnership legislation, which has not yet been submitted to the Oireachtas and if enacted would accord same-sex partners legal rights regarding wrongful death, pensions and immigration albeit not joint tax assessment; see Department of Justice, Equality and Law Reform, ‘General Scheme of Civil Partnership Bill’, http://www.justice.ie/en/JELR/Pages/General_Scheme_of_Civil_Partnership_Bill (accessed 31 December 2008).