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High Court of Ireland Decisions
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Cite as:  IEHC 404,  2 IR 417
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Judgment Title: Zappone & Anor -v- Revenue Commissioners & Ors
Composition of Court: Dunne J.
Judgment by: Dunne J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 404
THE HIGH COURT
[2004 No.19616 P.]BETWEEN
KATHERINE ZAPPONE AND ANN LOUISE GILLIGAN
REVENUE COMMISSIONERS, IRELAND AND THE ATTORNEY GENERAL
THE HUMAN RIGHTS COMMISSION
NOTICE PARTYJudgment of Ms. Justice Dunne delivered on the 14th day of December, 2006
The plaintiffs in this case are women who are Irish citizens and domiciled in this jurisdiction. They have lived together as a co-habiting couple in a lesbian relationship since their relationship began in 1981. Since 1983 they have lived together in this jurisdiction. The first named plaintiff is a Public Policy Research Consultant and a member of the Human Rights Commission. The second named plaintiff is an academic who works as a lecturer in St. Patrick’s College Drumcondra.
On the 13th September, 2003, the plaintiffs married one another in Vancouver, British Columbia, Canada. In Canada recognition has now been given to same sex marriage. One of the issues in this case relates to the validity of that marriage in terms of Canadian law but more particularly in terms of Irish law. A number of statements of evidence were submitted to the court by the parties proffering different views on the validity of the marriage in Canada. Assuming that the marriage is regarded as valid in Canada, the question of the recognition of that marriage in this jurisdiction becomes an issue and if it is not entitled to recognition in this jurisdiction, then, the plaintiffs claim a right to marry in this jurisdiction. Throughout this judgment I will refer to the marriage of the plaintiffs as such – by doing so I do not purport to imply any conclusion as to its status either in terms of Canadian law or Irish law.
Subsequent to their marriage, the plaintiffs’ solicitors wrote by letter dated 28th April, 2004, to Oifig an Ard-Chláraitheora seeking confirmation that their marriage was legally binding in Ireland. The response by letter dated 10th May, 2004, was: “the remit of the Registrar General does not extend to making a declaration on the validity of marriages that occur outside the State. This is a matter for the courts under s. 29 of the Family Law Act 1995.”
A letter was also written by the plaintiffs to the first named respondents, the Revenue Commissioners, on 26th April, 2004. That letter requested that the plaintiffs should be able to claim “our allowances as a married couple under the Taxes Consolidation Acts.” Enclosed with the letter was a certificate of marriage, an affidavit of Kenneth W. Smith, a Canadian barrister and solicitor, which dealt with capacity to marry in Canada and the validity of the marriage in Canada. The Revenue Commissioners responded by letter dated 1st July, 2004. It set out the effect of s. 461 of the Taxes Consolidation Act 1997. It went on to state as follows:-
Wife – a married woman especially in relation to her husband.
In their pleadings, the plaintiffs referred to a number of provisions of the Tax Code and pointed out that they would benefit financially under the Tax Code, if recognised as a married couple living together. Alternatively they say that they are disadvantaged financially in Irish tax law through the lack of recognition for their marriage. It is further pleaded that although the words married persons, spouses, husband and wife are used in the various tax legislation referred to by the plaintiffs, no definitions for any of these terms are contained in the Tax Code. It is also pleaded that there is no definition of married persons so as to exclude persons of the same sex. It is pleaded that the defendants wrongfully and in breach of the plaintiffs’ constitutional rights interpreted tax law to mean that the provisions relating to married couples relate only to husband and wife. It is further pleaded that in their interpretation of tax law and the refusal to treat the plaintiffs as a married couple the defendants acted without lawful authority, subjected the plaintiffs to unjust and invidious discrimination and acted in breach of the constitutional rights of the plaintiffs under Article 40 and 41 of the Constitution with particular reference to the provisions of Article 40.1, Article 40.3.1, Article 40.3.2, Article 41.1, Article 41.3.1 and Article 43. The plaintiff seek to have the relevant provisions of the Tax Code declared invalid having regard to the provisions of the Constitution if as interpreted they confine tax benefits to marriages consisting of husbands and wives and exclude same sex marriages. Alternatively reliance is placed on the provisions of the European Convention on Human Rights and it is pleaded that in failing to recognise the marriage of the plaintiff and to apply the provisions in tax law relating to married persons to the plaintiffs as a married couple that the defendants have discriminated against the plaintiffs on the grounds of their gender and/or sexual orientation in breach of article 14 of the Convention and have violated their right to respect for their private and family life and their right to marry under articles 8 and 12 of the Convention. Various reliefs are then sought in furtherance of the matters claimed in the statement of claim.
The defence delivered herein was to a large extent a traverse of the plaintiffs’ claim together with a plea that the legislative provisions and the acts and wishes of the defendants which are impugned herein are required by and/or valid having regard to the provisions of the Constitution of Ireland and the defence goes on to particularise the specific provisions relied on in this regard.
Katherine Zappone outlined her background, her meeting with Anne Louise Gilligan and the commencement of their relationship. She described how they exchanged “life partnership vows” with one another in October, 1982, in Rockport, Massachusetts. Subsequently they came to Ireland and have lived here together since then. On November 27th, 1995, she acquired Irish citizenship.
Dr. Zappone then outlined her concerns about the taxation implications in respect of the sale of any property they owned and in particular her concerns in relation to the taxation implications in the context of the death of one or other of them. She pointed out that she herself didn’t have any pension provision. For that reason a second property was bought by the plaintiffs and intended to be a resource for her pension. She pointed out that because their marriage was not recognised the survivor would suffer a significant tax liability as compared to the survivor of a heterosexual married couple. She expressed a concern that a gift to her from Dr. Gilligan of an S.S.I.A. which had recently matured could carry tax implications for her.
Dr. Zappone was then asked about the circumstances in which she and Dr. Gilligan decided to go to British Columbia to get married. She pointed out that the social context was changing with regard to the understanding of the normality of her sexual identity. She opined that lesbian and gay people started to seek the same right to marry that heterosexuals had enjoyed. She said that the rights, responsibilities and benefits and obligations that come with the institution of marriage are extremely diverse and varied but within those obligations she described those as being to care for Dr. Gilligan in sickness or in health, to be faithful to her for the rest of her days and to live together as a couple. Although she said that at this point in their lives the issues relative to taxation and financial security had become more important they were secondary to the desire to make a life commitment to her partner and consequently to marry her. She pointed out that apart from some practical reasons of convenience the reason for choosing to get married in British Columbia was because that was the only place where they could marry as there was not a requirement for citizenship or for residency prior to marriage.
She then gave evidence as to the correspondence with the Registrar General and with the Revenue Commissioners. As reference has already been made to that correspondence, it is not necessary to set it out again. She indicated her disappointment with the response of the Registrar General and her view that the lack of an opportunity to marry in this jurisdiction amounted to discrimination on the basis of her sexual identity. In relation to the correspondence from the Revenue Commissioners she indicated that she also experienced a sense of great discrimination. As a result of that correspondence it was decided by the plaintiff to take legal proceedings on the basis that they had experienced discrimination by virtue of the failure to recognise them as a married couple.
She said that in the past Dr. Gilligan had suffered from breast cancer and accordingly she, Dr. Zappone, ceased working for a period of time to care for her partner. She pointed out the difference in tax benefits for a married couple in circumstances where one ceased, for whatever reason, to work for a period of time and someone in the position of the plaintiffs herein who would not benefit from the same tax regime. She confirmed that the proceedings were commenced in order to get recognition of what she described as her legally valid solemnised marriage in Vancouver, British Columbia. In the circumstances that the State declined to recognise that marriage the decision was made to commence these proceedings.
Dr. Zappone was then cross examined and she confirmed that as a result of legal changes in British Columbia the plaintiff made a decision to obtain legal recognition for their life partnership in British Columbia. They obtained legal advice from Mr. Kenneth Smith, a Canadian barrister and solicitor after their marriage there. They did not get legal advice in this jurisdiction prior to the marriage.
Before the marriage she had looked at the internet and at a document entitled “How to get married in British Columbia”. She saw the part of that document which advised that it was not necessary to be a British Columbia resident in order to be married there. She noted that the licence to marry was only valid in British Columbia. She didn’t see the part of the document that stated:-
Dr. Zappone confirmed that she became aware of the Civil Registration Act, 2004, during the course of these proceedings. She indicated that she is now aware of the specific provisions of that Act to the effect that there is an impediment to a marriage if both parties are of the same sex.
She was further asked about her reaction to the response of the Revenue Commissioners to the correspondence referred to above. She confirmed that she did not think the reasons given in that correspondence, saying that the relief contained in the Taxes Consolidation Act were applicable to heterosexual married people only and not otherwise, was very satisfactory.
Dr. Zappone was then asked in some detail about changes in the situation of gay and lesbian people brought about through the political process and in particular by means of legislation protecting rights and ensuring no discrimination. She accepted that since the decriminalisation of homosexuality 13 years ago, that there was strong anti-discrimination legislation although she was of the view that certain aspects of equality legislation did not protect the plaintiff particularly in the light of the action they were currently embarked upon.
She was then asked briefly about the nature of these proceedings and she confirmed that the case as it started off originally sought the recognition of the Canadian marriage. (I should note that at this stage there was some discussion between Counsel as to whether or not part of the original relief sought in the judicial review proceedings included the right to marry in this jurisdiction. I will come back to that point later.)
Dr. Zappone was then asked about the consequences of her proceedings in the event that she was successful. It was pointed out that amongst the reliefs sought was the striking down of various provisions of the Taxes Consolidation Act of 1997. She indicated that her understanding was that if those provisions were struck down on the basis that they are unconstitutional if they did not include the right to same sex marriage that they would be re-introduced with the inclusion of same sex couples. She conceded that she and Dr. Gilligan are not treated any differently in relation to taxation provisions from heterosexual cohabiting couples that were not married. She 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 the view of society at that time was that homosexuals were of an inferior status and in that context were not allowed to participate in the institution of marriage. It was her belief that that view has now changed in that there is now a stronger consensus in relation to the acceptance of the normality of the sexual identity of people who are homosexual. Over time the understanding of marriage has changed and therefore the law has changed to reflect that. She expressed the view that in terms of recognising same sex marriages that the attitude or consensus as to same sex marriage is changing. Nonetheless she accepted that, although there had been changes in the law such as the Employment Equality Act in 1998 and the Equal Status Act in 2000 in terms of protecting the rights of individual gay and lesbian people, the Civil Registration Act in 2004 imposed a statutory impediment to same sex marriage notwithstanding the changes in relation to the law for the purpose of bringing about greater protection against discrimination. She accepted that a Bill sponsored by Senator Norris was presented to the Houses of the Oireachtas in relation to civil partnership but she did not think that the same had any relevance to the facts of this case. Finally she accepted that the statistics from the 2002 census indicated that there were 77,000 cohabiting couples and approximately 1,300 of those are gay cohabiting couples.
Dr. Ann Louise Gilligan then gave evidence. She described her background. Her evidence did not differ in any material respect and thus it is not necessary to set it out. Following her direct evidence, Dr. Gilligan was not cross examined by the State.
The evidence of Dr. Zappone and Dr. Gilligan was not challenged to any significant extent. The only point to note was the concession made by Dr. Zappone that there is no difference in the tax treatment of cohabiting couples who are either heterosexual or homosexual.
At that stage it was agreed by counsel for the defendants that a witness statement from Mr. Cremins of Price Waterhouse Coopers in relation to taxation matters could be handed in to the court. The purpose of the report was to deal with the taxation issue raised in the case. The report was then submitted in evidence subject to one matter which was under discussion between the parties and upon which clarification may have been required. This was subsequently dealt with. The report was written into the court record without being read out in full. The summary of the report noted that whilst the income tax regime does not hold an immediate identifiable disadvantage for the plaintiffs in their current circumstances capital gains tax capital acquisition tax and stamp duty regimes could do. He pointed out that current capital gains tax, capital acquisition tax and stamp duty legislation impact adversely on the ability of one plaintiff to provide for the other plaintiff in the case of their death or as the case may be if the relationship were to break down, in comparison to a married heterosexual couple.
Professor Henry Kennedy, a Consultant Forensic Psychiatrist who is the Clinical Director of the Central Mental Hospital and Professor of Forensic Psychiatrist at Trinity College Dublin then gave evidence. In addition to his oral evidence a report was also furnished by Professor Kennedy. He noted that in all eras and all cultures, homosexuality has been described. At times homosexuality was unremarked upon and open and at other times a repressed manifestation associated with particular consequences of that such as being a sub-culture. The Napoleonic code decriminalised homosexuality at a time when it was not decriminalised in England and that in countries which adopted the Napoleonic code, generally, homosexuality was decriminalised. He pointed out that psychiatry and medicine became involved in homosexuality and its consideration because psychiatrists were called upon to provide evidence in mitigation or defence of those charged with homosexual offences which carried extreme penalties.
Asked to consider the past 30 years in terms of the modern view of homosexuality he described the work of the Wolfenden Committee in the United Kingdom and stated that it was informed by the psychiatric opinion of its day and took the view that the function of the law was not to intervene in the private lives of citizens. It defined the role of law in relation to sexuality thus:
He noted that in psychiatry there was now an awareness of the distinction between stigma and disability. The social perception of homosexuality is such that stigma attaches to homosexuality. He added that that stigma can give rise to distress shame, embarrassment and loneliness. In turn those reactions to the stigma can cause illnesses such as depression and anxiety. He quoted in particular from the Oxford Textbook of Psychiatry which offers an authoritative statement of the relationship between homosexuality and psychiatric disorder as follows:-
In cross examination he agreed with counsel for the defendants that the effect of stigma that he described are the general effects of stigma or discrimination that might have effect on heterosexuals as well as homosexuals. In other words any form of discrimination or stigma could have those effects.
The next witness who gave evidence was a Professor Daniel Maguire, a professor of moral theological ethics at Marquette University, a Catholic Jesuit institution in the United States. Professor Maguire is a theologian. His evidence was admitted for a very limited purpose. It did not advance the Plaintiffs’ case to any extent. For that reason I do not propose to refer to it again.
Following the evidence of Professor Maguire there was some discussion about the statement of evidence of Dr. Evelyn Mahon as to figures available from the census and other demographic information. That statement was handed in. An appendix setting out the position in other E.U. countries relating to the issue of recognition of same sex marriage together with the issue of recognition of civil partnerships was included with that statement.
Professor Richard Green then gave evidence. He is a psychiatrist and lawyer. He was asked to deal with the issue as to whether or not there was evidence to show that the children of a same sex couple or raised by a same sex couple are any worse off from an emotional or any other relevant perspective than they would be compared to children raised by heterosexual couples. He had prepared a written report setting out findings from studies he himself had conducted and other studies in this area. His evidence was to the effect that children raised by same sex couples are not disadvantaged in terms of their psychological development, their psycho-sexual development, their social relations and that the extent of positive effective parenting that they obtain from their parents is not significantly different from that of the male/female heterosexual couple. He outlined the studies and research that have taken place in this area. Such research has now been ongoing for about 30 years. He himself published a paper in 1978. At the time, he assessed 11 boys and ten girls being raised by homosexual mothers. They were aged between five and 14 years and at the time of assessment they had lived with their lesbian mothers from between two and six years. Their psycho-sexual development was normal. Four of the children were old enough to report sexual interests in sexual partners and they recorded as being heterosexual. One of the concerns was to assess whether the children had been subjected to teasing by peers and three of the children had reported some teasing which had been of relatively brief duration. The other 18 children reported no teasing.
He conducted a further study with co-investigators in 1986, which was a study of lesbian mothers and their children compared to solo heterosexual mothers and their children. This study involved ten U.S. States and children aged between three and 11 years. There were 50 lesbian mothers and their 56 children and they were contrasted with 40 heterosexual divorced mothers and their 48 children. He pointed out that the mothers had lived as single parents for an average of four years. The majority of lesbian mothers lived with another female adult in addition to the children. He noted that with respect to peer group ratings of popularity there was no significant differences between the two groups of boys or the two groups of girls in the two family sets. No group differences were found on any indicators of the children’s discontent with their own gender as boys or girls. On no measure of psycho-sexual development were any group differences found between the boys or girls in the two samples. He concluded that the quality of parenting by the parents of same sex couples or perhaps single mothers who were lesbian mothers did not have any significant difference as compared to the quality of parenting of heterosexual mothers and their children. He concluded that the findings of the study were that there was no evidence of detriment to the children or of compromised parenting to the children.
He then referred to the findings from a longitudinal study carried out by Golombok and Others. Those involved were assessed in the mid 70’s aged ten and reassessed 15 years later, in 1991/1992, aged on average 25. The conclusions of that study were that children from the lesbian mother families reported more positive relationships with their mother’s female partners both as adults and during adolescents than the comparison group whose mothers had male partners. It was noted that if the mother had a stable long term same sex relationship at the time of the original study, the children were more likely to be accepting of their family background during their teenage years. Young adults from lesbian mother families were not significantly more likely than those from heterosexual backgrounds to report having been picked on by classmates although there was a small tendency to remember being teased about their own sexuality, particularly for the boys. However, he noted that the children were no more likely to report difficulty in bringing friends home and as a group they continued to experience good peer relationships. The conclusion of their researches with respect to the children’s own sexual orientation was that there was no difference between the proportions of young adults who report at least some same sex attraction. Those from lesbian families were more likely to have had a same sex relationship; however 23 of the 25 were heterosexual.
He discussed the issue of the quality of mother child interaction. The study carried out by Brewaeys and Others, including Golombok reported on this issue in 1977. The children concerned were from lesbian mothers whose mothers did not have a male partner and where the children had no contact with the biological father. These were pregnancies from donor insemination. The 30 homosexual mothers who were donor inseminated were compared with 38 heterosexual families. The children were aged eight years. The quality of mother/child interactions did not differ. The quality of interaction between the social mother, that is to say the lesbian mother’s female partner, and the child was found to be superior to the father/child relationship in heterosexual families. Social mothers were regarded more as a parent than the fathers were. It was noted in that study that the children of lesbian mother families were well adjusted and their gender role development did not differ from the children in heterosexual families.
Professor Green then discussed the American Academy of Paediatrics Committee on psycho-social aspects on child and family health which reported their professional opinion on children of lesbian mothers in 2002. No substantial differences were found between the children raised by homosexual parents and heterosexual parents. It was noted that in the case of male homosexual parents, there were “more similarities than differences in the parenting styles of gay and non gay fathers”. Lesbian mothers scored the same as heterosexual mothers in “self esteem, psychological adjustment and attitudes towards child rearing”. None of the children had gender identity confusion, wished to be of the other sex or consistently engaged in cross gender behaviour. For older children in the study there were no differences in sexual attraction or self identification as homosexual. The children showed no differences in personality measure, peer group relationship, self esteem, behavioural difficulties or academic success. A number of other parts of that report were read to Professor Green and it may be helpful to quote those in full:
Finally Professor Green referred to an article in the Scandinavian Journal of Psychology by Anderssen and others, which was a review of studies published between 1978 and 2000 reporting on some twenty studies of children of lesbian mothers. The studies concerned covered six hundred and fifteen children. They ranged in age from young childhood to adulthood. On outcomes of emotional functioning, sexual preferences, stigmatisation, gender role behaviour and behavioural adjustment, it noted that children raised by lesbian mothers did not systematically differ. They did not experience an adverse outcome.
Accordingly he summarised the situation by saying that there was great consistency in the findings from several studies conducted in the U.S., England and continental Europe spanning at least two decades. No clinically significant differences are found comparing boys and girls raised by lesbian mothers solo or with a female partner when compared with boys and girls raised by single heterosexual mothers or heterosexual mothers living with the father of their children. Sexual orientation data for the children do not differ. The quality of parenting between the groups is comparable. Peer group relations of the children, with minor exceptions, do not appear to be negatively impacted by the minority sexuality pattern of the children’s mother. His overall conclusion was that studies of children being raised by gender or sexually atypical parents do not demonstrate adverse impact on the children. It is the quality of the parent/child relationship and not the typical versus atypical status of the parent that is the essential ingredient of effective parenting and the best interest of the child.
Professor Green was vigorously cross examined. He explained that the motivation for the research he had described was in part due to a recognition of the importance of family structure in terms of child welfare. The other motivation for the research carried out sprung from the fact the thirty years ago it was unusual for same sex parents or lesbian or gay parents to have children and to argue that they should be allowed to maintain the parenting relationship with their children. There was much more stigmatisation of homosexuality at the time, there was concern as to whether homosexuality was a mental illness and whether that might impact on children. There were other aspects that the behaviour of homosexual parents, which in many jurisdictions were then criminalised, would have an impact on the children concerned. Accordingly as there was concern about how the various influences would impact on the children, a number of investigators set about studying important parameters of the parent child relationship in terms of the child’s development psycho-sexually and socially.
In terms of children’s welfare one of the first issues to consider was the psycho-sexual development of children if one has a parent whose psycho-sexual development is atypical, in other words what impact would that have on the child or children. Accordingly one of the considerations was to measure the extent to which boys and girls would adopt conventionally boyish and girlish behaviour during childhood. For children who were old enough to acknowledge or experience their sexual orientation to male or female partners, it was examined whether those children would themselves be heterosexual, bi-sexual or homosexual. Various other criteria were used in measuring child welfare for the purpose of ascertaining the children’s physical, mental and emotional health and development, such as the academic performance and levels of attainment of the children, the avoidance of crime and other forms of destructive behaviour and their functioning as adult in the areas of employment, citizenship and family formation. It was agreed that these were variables that might well be examined, though not necessarily in every single study.
Having identified various indicators that would be important to study in the context of child welfare, Professor Green accepted that there were indeed relevant indicators and that their importance would depend on the immediate focus of a particular research project.
He was cross examined extensively in relation to the methodology or scientific basis for carrying out the various studies referred to in his evidence. Without going into all of the detail, reference was made to the numbers involved in the types of studies carried out, the nature of those studies as to whether they were cross sectional studies or longitudinal studies, the nature of the indicators that were measured in the particular studies. In addition the manner in which the sampling for the various studies was done was examined. In this regard there was discussion as to the difference between probability sampling, snowball sampling and so on. It was put to Professor Green that there was controversy in the literature as to the ability to draw any meaningful conclusions at this stage of development as to the welfare effects on children growing up in lesbian households. Professor Green did not agree that there was such a degree of controversy, but accepted that there was a minority of those who wrote in this area who were of the view that it was too early to draw meaningful conclusions as to the welfare of children being brought up in households where the sexual orientation of the parents was homosexual. It was suggested that it was not appropriate to draw any long term reliable conclusion on the basis of the studies to date. The overall view of Professor Green was that there was such consistency in the various studies that the conclusions were reliable. He did not entirely agree with the proposition that there is a consensus amongst scientists who study family structures of the importance in terms of children’s welfare of the presence of both biological parents. He agreed that that was important but was uncertain as to whether there was a consensus that that was the ideal family structure. Even if it was the consensus, he was of the view that that was not the relevant issue. The relevant issue is the quality of the parents. He pointed out that there was nothing guaranteed to promote a child’s welfare simply by virtue of the presence of a mother and father in the home.
In re-examination, Professor Green was asked to refer to the report from the American Academy of Paediatrics. That report was a summary of research evidence on the topic of co-parent or second parent adoption by same sex parents. It noted at page 342 that
Professor Patricia Casey was then called on behalf of the defendants. She is a well known Professor of Psychiatry at University College Dublin, and is attached to the Mater Hospital in Dublin. She described the fact that she had conducted considerable research on matters pertinent to her discipline. She explained that she had been involved in epidemiological research and surveys for a number of years. Epidemiological studies measure the prevalence and risk factors and outcomes of particular conditions. She indicated that she was very familiar with the methodology of conducting such large scale studies and to the significance which can be attached to the findings of such studies.
She was then asked to comment on the evidence given by Prof. Kennedy. She agreed with his evidence to the effect that homosexuality is not a psychiatric illness and that it ceased being regarded as a psychiatric illness in the 1970’s in America and in Europe. She commented that there is no definitive understanding of why it is that a minority of people are homosexual or bi-sexual. She referred to various theories as to why it should be so, but she observed that in truth nobody knows. She agreed with his evidence that where discrimination was present or experienced that it can have an effect on the psychiatric well-being of individuals. She accepted that that was so and that it was not something unique to homosexuals but was a reaction to discrimination generally. She referred to a number of studies in relation to the issue of discrimination as it contributes to emotional distress in the gay, lesbian and bi-sexual population and she commented that it was only one of the variables and that other variables also contribute, indeed sometimes contribute more, to such emotional distress.
Professor Casey was asked in more detail about the question of the methodology for conducting research. In this regard she was asked about an affidavit sworn in other proceedings by a Professor Steven Nock of the University of Virginia, which was relied on in two of the leading cases on same sex marriages in Ontario and in Vermont. Professor Nock is a sociologist in the United States and in the course of his affidavit he described the methodology of conducting sociological research and the conclusions that can be drawn from such research. Professor Casey explained that in the affidavit sworn by Professor Nock, he detailed in the first part of his affidavit the methodological approaches to be used in epidemiological research of the sort that is concerned with gay and lesbian parenting and the second part of his report dealt with individual studies published in that area and he critiqued each one pointing to the strength and weaknesses of the particular reports.
A long discussion then ensued as to the methodology involved in carrying out social research. The discussion ranged over probability samples, snowball sampling, cross sectional studies and longitudinal studies. There was an explanation as to the need for controls in relation to studies in order to avoid confounding factors. Reference was made to the study of which Professor Green was a co-author in 1986 in which it was noted that seventy-eight percent of the lesbian parents studied were living with a partner at the time and that only ten percent of the heterosexual mothers who were studied had partners living with them at the time. Professor Casey commented that this was an obvious potential confounding factor for which one needed to have a control. It was also noted that so far as such studies have been conducted there appeared to be no studies conducted into the role of parenting by gay men.
Having referred to all of these matters, Professor Casey commented that the various studies cited by Professor Green do not meet the criteria required for good epidemiological studies. They did not use probability or random sampling, they were of small sample size by and large and there were confounding factors in some of the studies. Only one of the studies referred to was a longitudinal study. As a result she was of the view that one had to be very cautious in making broad generalisations about the findings of these studies in regard to the general population. A reference was made to the affidavit of Professor Nock to that effect and I quote:
Professor Casey was then cross examined. She confirmed that she herself had not carried out or published any studies on same sex relationships. She examined the studies referred to as a scientist who conducts similar types of research. Prior to giving evidence she had been furnished with the official journal of the American Academy of Paediatrics and the Nock affidavit together with a statement of Professor Green’s evidence. She indicated further that she had read the Golombok Report namely the 1977 study and the 1986 follow on from that. She also referred to three studies which she described as being good studies on discrimination namely “The Midus Study” published in 2001 in the American Journal of Public Health, a study entitled “Mental Health and Quality of Life of Gays and Lesbians in England and Wales”, King and Warner published in 2003 in the British Journal of Psychiatry and a study in relation to the health of people classified as lesbian and gay attending family practitioners in London published in 2006 in BMC Central, an on-line journal. Finally she referred to a study by Warner and King, (James Warner, McKeown and Griffin) entitled “Rates and Predictors of Mental Illness in Gay Men, Lesbians and Bi-sexual Men and Women” which were the results of a survey based in England and Wales and published in 2004 in the British Journal of Psychiatry. Three of those studies dealt with discrimination and the fourth study the last one, dealt with general health matters. It was an off-shoot of the other two studies by Warner and King and King and Warren. There was a general discussion of the findings of those particular studies.
She referred to the conclusions and comments made in the report referred to above in the American Academy of Paediatrics Publication to the effect that the weight of evidence gathered over the decades to the effect that there was no systematic difference between gay and non gay parents in emotional health, parenting skills and attitudes towards parenting and commented that her difficulty with that conclusion was not so much with the conclusion as such but with the methodology of the studies upon which the conclusion was based. She disagreed with their conclusions because of the fact that she did not accept that the quality of the evidence on which that conclusion was based, was adequate, because there was only one longitudinal study referred to in that report.
She was then asked about the conclusions contained in an article published in the journal of the American Psychological Association entitled “Legal Recognition of Same Sex Relationships in the United States” by Gregory M. Herek. Reference was made in the course of that particular article to the published data to the effect that same sex and heterosexual relationships do not differ in their essential psycho-social dimensions. It further noted that:
“A more realistic standard is the one generally adopted in behavioural and social research, namely, that repeated failures to disprove the null hypothesis are accepted provisionally as a basis for concluding that the groups, in fact, do not differ.”
Having referred to these constraints, the author of that article went on, having pointed out the deficiencies in some of the individual studies concerned:
The attention of Professor Casey was then drawn to the study by Judith Stacey and Timothy Biblarz referred to above. In that article the two authors pointed out that the debate in the area of the sexual orientation of parents was to some extent polarised in that one side attempted to show that there was no difference between heterosexual and homosexual parents and the other side of the debate trying to show the converse. They concluded that it was necessary to carry out further study. Their comment was put to Professor Casey:
Professor Casey was then taken through the four reports, she described as being good studies. There was some discussion as to the methodology employed in those particular studies.
In re-examination she was asked again about Professor Nock’s affidavit and the reference in his affidavit to the null hypothesis and type two errors. Such an error was described in his affidavit as being where one falsely accepts the null hypothesis. In other words the null hypothesis is assumed to be true. She reiterated her view that it was difficult in relation to some of the studies to form firm conclusions given the relatively small samples involved and the methodology used. She was then asked to comment on a passage from the report by Mr. Herek to the following effect:
Finally reference was made to a statement in Professor Green’s evidence in respect of the Tasker and Golombok report which found an increased likelihood that children raised in lesbian families were more likely to have the same sex relationship. Reference was also made to the fact that there was no study in relation to families of gay men and on that basis it was put to her that there was some difference between families or between children raised in same sex relationships and those raised in heterosexual families. She agreed that that was so, but pointed out that the numbers involved in the Tasker and Golombok report was very small and she emphasised that there may be differences between families raised in a same sex relationship and those in a heterosexual relationship and that that possibility demonstrated all the more that bigger samples needed to be taken in respect of such research and further that such studies should be longitudinal studies. That concluded her evidence.
The final witness called on behalf of the defendants was Professor Linda Waite. She is the Lucy Flower Professor in Urban Sociology in the University of Chicago. Her main area of research and study is the family. She has studied marriage as a social institution and has studied it in the context of co-habitation, divorce, working families and aging families. As a result of her studies and research on the family structure and the institution of marriage in the context of heterosexual marriage she has concluded that the evidence overwhelmingly supports the conclusion that the social institution of marriage changes the choices and behaviour of individuals and those around them in ways that make them better off, that improves their physical health, that improves their emotional health and improves outcomes for children. In relation to the benefits that accrue to children, she said that those involved emotional well-being and involved physical health; children raised in a two parent family are less likely to become ill when aged and less likely to die when they are post retirement age. She noted that children on average do better in school, they have fewer behaviour problems, they have higher academic achievement and are more likely to graduate from college and to have good occupations. She noted that they are more likely to form married families themselves and are less likely to have children while unmarried. She said that among scholars who have studied the heterosexual marriage as to the benefits she has described, that there has been a lot of debate over the last ten or fifteen years and that this is something which is still the subject of active debate, but that there was a general consensus as to the benefits she had described accruing to those involved in heterosexual marriage for the individuals themselves.
She was specifically asked whether there was any relevance to the complimentarity of the sexes in respect of the benefits identified that accrue to children of a heterosexual marriage and she was of the view that there are studies which indicate that the literature suggests that in child rearing the father and the mother help children develop different sets of skills, that they tend to interact differently with children and that the different kinds of interactions benefit children in different ways. Asked whether there was similar research in relation to non heterosexual marriages, she stated that there was a very different kind of research. The research to which she referred in relation to the benefits of particular family structures was based on large scale survey research of many families and was in her view more persuasive and had stronger scientific evidence than research that has been done on gay and lesbian parents. None of that research to the best of her knowledge was based on survey research but rather was based on interviews or on very much smaller scale non random samples, therefore such research provides a much weaker basis for drawing scientific conclusions. She pointed out that research into heterosexual marriage has been ongoing for approximately one hundred years and that the period of time for such research is far greater than that which has been done on non heterosexual marriages or relationships. She also made the point that if the situation in which families are operating has changed very fundamentally, for example if attitudes have changed, if the economy has changed, if the legal structure has changed, then something that mattered in the past may not matter now and this needed to be taken into consideration in drawing conclusions.
She was then asked about the review carried out by Professor Steven Nock into research that was conducted in relation to children brought up by same sex couples. She explained that Professor Nock is highly regarded among fellow scientists. In the affidavit containing the review described above, she agreed that he explains and identifies the distinction between a correlation and a causal connection. She agreed with his views on that issue. He identified the presence or absence of random sampling of the subject of the study as important and relevant to the conclusions or the reliability of conclusions that can be drawn from studies in this particular area and she agreed with his views in that regard. She pointed out that the use of random sampling if one wants to derive conclusions relevant to the population at large or applicable to the population at large is absolutely essential. She also noted that there are highly developed sets of techniques for the purpose of sampling those who represent the population as a whole and she agreed with the importance of the methodological procedures identified by Professor Nock in his affidavit in order to be able to draw a meaningful conclusion from any given study.
Asked about Professor Green’s testimony and his report, she indicated that she had considered same and insofar as he had expressed a view that one could draw meaningful conclusions from small samples of people of limited numbers, not selected on a random basis she was of the view that such studies could only be suggestive and that there were no conditions under which those studies could be affirmed to represent those processes or attitudes in the population as a whole.
She was also asked about the importance of longitudinal studies as opposed to cross sectional studies, she pointed out that if one looked at a particular family structure and examined children at a particular stage, that all it could do is tell you about the well being of children of that age, but it would not be possible to indicate anything about the effect of the family structure in the long run. She pointed out that there had been examples in recent times of the difficulty in predicting social outcomes by reference only to particular cross sectional studies. In the United States when there was debate in respect of changes in divorce laws it was firmly believed by child development specialists at the time, that as long as children had a loving parent, at least one, they would be fine if their parents divorced and that the children would get over it quickly and move on with their lives. She noted that over the last thirty or forty years, evidence has slowly emerged that this is not at all the case, that divorce plays a much larger role in children’s lives, in their emotional well-being and in their career and personal accomplishments as adults which was not known or expected at the time of earlier studies. Such a state of knowledge has been made possible by the availability of longitudinal data in that the children were followed over long periods and very large numbers of children were studied under various circumstances over such long periods. She pointed out that when studying such family structures and the impact on children, that there were a wide range of possible indicators of well-being or welfare that would be studied. The more indicators available to measure presented a more balanced picture than any one indicator could possibly present.
She was critical of Professor Green’s 1986 study in relation to the outcome for children in terms of sexual identity and relationship to their peers which involved a comparison between children brought up by gay parents, seventy eight percent of whom had a partner, and children brought up by heterosexual parent of whom only ten percent had a partner and she commented that one could not do a comparison in such circumstances. She said that it was extremely important to have a full picture of the methodology used for a particular study and the controls used to exclude confounding or biased factors. Her comment was as follows:
In cross examination, Professor Waite was asked about a book she wrote with Margaret Gallagher entitled “The Case for Marriage”. That book was written as an expansion of a speech given by the Professor to the Population Association. She and her co-author held a common view as to the value that marriage represents. In the book it was noted that she and Ms. Gallagher held differing views in relation to same sex marriage, in that Ms. Gallagher is opposed to same sex marriage, whereas Professor Waite expressed the view in the book that she was either neutral or in favour of same sex marriage. She explained that in fact her approach to the topic was that she was neutral and her reason for being neutral was that at this stage there simply was no evidence one way or another as to the consequences of same sex marriage. She saw her role as a scientist as evaluating the evidence and not telling people what to do. In response to the direct question, is there any reliable scientific evidence to support the proposition that children are worse off if their same sex parents are married as opposed to unmarried, she indicated that she knew of no evidence on that point. Having referred to the benefits of marriage that she had outlined, she indicated that she could not comment on whether such benefits could be enhanced for same sex couples if they were recognised by the State as entitled to marry. Her view was that it could be the case, it may not be the case. There simply is not any evidence one way or another.
Professor Waite was then asked for a number of comments in relation to the study by Stacey and Biblarz referred to previously. She was asked to comment on the conclusions drawn by Stacey and Biblarz from their summary of a number of studies to which they referred. As Professor Waite had not read the studies themselves she was not able to comment on the conclusion drawn by Stacey and Biblarz. A point was put to her from that study to the effect that two parents in a same sex marriage, if they are women, in the case of a lesbian relationship, have particularly good relationships with their children and that it may be the case that gender studies show that women have, for whatever reasons, better parenting skills than fathers do and having referred to a passage from their study, she was asked to comment on the view that women whatever their sexual orientation tend to be better at parenting than men. Her response was to comment that whilst she had not compared the parenting as between women and men she found the argument convincing. She noted that women do parent differently than men. She noted that there had been a number of recent studies on differences between step-fathers and biological fathers and between co-habiting biological fathers and married biological fathers that find significant differences in their investment in their children, in parenting and in the children’s outcome for the various categories. These studies, although only a couple of studies, were done on large samples, but the studies suggest that it is not just important to have a biological father present but it is also important to consider the nature of his ties to the mother. Those particular studies to which she referred were not concerned with same sex parenting. She noted that there was no comparison between heterosexual parents and same sex parents. That concluded the evidence on behalf of the Defendants.
Michael Collins S. C. opened the submissions on behalf of the Plaintiffs. He submitted that this case raises a net point of Irish constitutional law and an issue as to compatibility with the European Convention on Human Rights (ECHR) in respect of the right to marry. The point at issue is whether the right to marry can be limited or circumscribed to the extent that a category of persons such as the plaintiffs who are of the same sex are excluded from the right to marry.
It is accepted 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. Further by reason of the provisions of the Civil Registration Act 2004, s. 2(2) (e) it is provided as follows:-
(e) both parties are of the same sex.”
So far as the restrictions on the right to marry are concerned, it was accepted that there are compelling and justifiable reasons for some restrictions on the right to marry, for example, restrictions on marriage within the prohibited degrees of relationship or where the parties are under eighteen years of age (Family Law Act 1995). However it was contended that a restriction based on sexual orientation or gender was not justifiable. It was contended that two categories of persons have been created, which two categories are distinguished on the basis of either sexual orientation or gender, namely, a category of persons who are heterosexual and can marry the person they love and a category of persons who are homosexual who cannot marry the person they love. The difference between the two categories is based on sexual orientation. It was also argued that the creation of these two categories constituted a gender based discrimination. Counsel illustrated this by pointing out that “If John wants to marry Mary, he can do so. If John wants to marry Fred, he cannot do so.” Accordingly the distinction between the two categories is also a gender based distinction. The significance of a classification based on gender or sexual orientation is that such a classification is regarded under Irish constitutional law, Convention jurisprudence and under Irish legislation as prima facie discriminatory grounds. As such they come within a category described as suspect. On that basis it was argued that there is a presumption under Irish constitutional law and under the Convention that the classification is such as to demand a justification by the State. To put that another way it was argued that the burden shifts to the State to show why the State is invoking this classification to eliminate a particular group from exercising a particular constitutional right.
It was pointed out that it was difficult to know from the pleadings in this case what particular justification was to be advanced by the State for the discrimination identified. It is fair to say that the defence herein consists to a large extent of a traverse of the plaintiffs claim herein, but it does provide at para. 17 as follows:-
The first potential justification is that the nature of marriage has something to do with procreation. In other words it was suggested that the argument could be that those who marry should be able to biologically procreate and that this is an essential feature of marriage. As such it is clear that a same sex couple lack the biological capacity to mutually procreate and that as a same sex couple would thereby lack an essential feature of marriage, such marriage is not really a marriage at all.
The second justification proffered to restrict same sex marriage is on the basis that the welfare of potential children of the marriage is better in a family relationship where the parents are heterosexual than in a relationship where the parents are homosexual.
The third justification offered is a definitional justification. In other words marriage is something between men and women and has always been. Thus marriage is defined in such as way as to exclude same sex couples. Therefore the right to marry while it exists under the Constitution and Convention only means the right of a man to marry a woman and vice versa.
The fourth justification sometimes relied on is based on the assumption that a majority in society disapprove either of homosexual people, homosexual relationships or homosexual conduct either on the grounds that the same is immoral or for religious reasons, philosophical reasons or for some other reasons and that the State is entitled to act on foot of that presumed majority view to prohibit same sex marriage. Accordingly, counsel proceeded to analyse the various justifications that have been advanced to support the restriction on same sex marriage in other jurisdictions.
It will be noted from the evidence outlined above, that it was not in fact suggested on behalf of the State that the justification for the exclusion of same sex couples from marriage was on the basis that the nature of marriage is related to procreation and therefore I do not propose to set out the submissions made in respect of that argument. Equally no argument was put before the court on behalf of the State to the effect that in restricting the right to marriage to heterosexual couples, the State was doing so on the basis of a majority view either for reasons of religion, moral reasons or any other philosophical reason. Accordingly, I do not propose to deal with any arguments led by counsel on behalf of the plaintiffs in this respect.
In essence therefore the arguments on behalf of the plaintiffs were narrowed down to the definitional argument and the issue in relation to the welfare of children.
In the submissions, counsel on behalf of the plaintiffs examined extensively Irish case law, the jurisprudence on the European Convention on Human Rights and case law from other jurisdictions where the issue of same sex marriage has been considered by the courts of those jurisdictions.
The starting point of counsel’s submissions in relation to the authorities began with those that deal with the definition of marriage. It was noted that neither in the Constitution nor the European Convention on Human Rights, nor in the revenue legislation is there a definition of marriage provided. At common law the classic definition of marriage was stated in the case of Hyde v. Hyde (1866) L.R. 1 P and D 130 at 133 by Lord Penzance as follows:-
The next issue examined on behalf of the plaintiffs was the question of the formal requirement for contracting a valid marriage. As indicated earlier on behalf of the plaintiffs the State has a legitimate interest in circumscribing and regulating the requirement in respect of contracting a valid marriage. I do not think it is necessary to refer in detail to these matters but obviously one of the bases on which a marriage will not comply with the formal requirements for contracting a valid marriage is if one or other of the parties lacks the capacity to enter into a valid marriage. It was accepted that at common law there was a prohibition on same sex marriage. To put it another way it was a requirement at common law that both parties be of the opposite sex. The law on capacity has been changed from time to time by various statutes and most recently by the provisions of the Civil Registrations Act 2004, to which reference has already been made. Accordingly it was submitted that whilst the traditional exclusion of same sex couples from the institution of marriage is based upon a rule of capacity there is nothing in the Constitution that rigidly sets down what the rules of capacity are in terms of the entitlement to get married. In support of that contention, counsel referred to the then reserved judgment by Laffoy J. in the case of O’Shea v. Ireland which was a decision which related to lack of capacity in the context of parties who were within the prohibited degrees of relationship.
Since the conclusion of the hearing in this case, judgment has been given in that case but, I do not think it would be appropriate to comment further on that decision. Obviously the parties could not make any submissions on the outcome of that case and therefore I do not propose to make any other comment in relation to it save to note what was at issue in those proceedings.
Reference was also made to the recent decision of the High Court in the case of N. and Another v. H.S.E., G. and Another (Unreported, 15th September 2006) MacMenamin J, in which the rights of the birth parents as a marital family under the Constitution were considered. Since that judgment was given, the Supreme Court has ruled on an appeal from that decision. Again, the submissions made herein in relation to that particular case were based on the decision in the High Court. If I was of the view that the Supreme Court decision in that case could be of assistance in determining the issues before me in this case, I would have invited the parties to make further submissions before me but as I did not think that that was the case, I did not pursue that course. The purpose of referring to such decisions was to emphasise the fact that these and other decisions demonstrate that there has been a shift in the understanding of marriage.
Counsel for the plaintiffs then referred to a number of statutory provisions which gave recognition to the position of co-habitees and also to the Law Reform Commission’s Consultation Paper on the rights and duties of co-habitees. Reference was made in addition to the provisions of a number of statutes which prohibit discrimination on the grounds of sexual orientation (see e.g. the Employment Equality Act 1998, the Equal Status Act 2000 and the Equality Act 2004).
Counsel then referred to relevant provisions of the Constitution and in particular to Article 41 of the Constitution.
The central pillar of the plaintiffs’ arguments in this case is that in our jurisprudence and culture the concept of equality under the Constitution and by virtue of the ECHR is such that all persons have the same legal rights irrespective of their race, their national origin, their gender, their religion and their ethnic background. Yet it is argued that different treatment is applied to some people on the basis of their sexual orientation notwithstanding the view that generally all people have the same legal rights all other things being equal. The case made by the plaintiffs is that they are not arguing for special rights or extra rights by virtue of the fact that they are a lesbian couple, but on the contrary they are arguing for the same rights as everyone else has. In particular they say that they are entitled to enjoy the right to marry in the same way as the vast majority of people in this country exercise that right. They say that the right to marry is the right to marry the person of one’s choice that one loves and with whom one wants to have a lifelong committed relationship of intimacy. Others can make that choice and the plaintiffs have made such a choice, but they are barred from entering the institution of marriage. The argument made is that the State cannot constitutionally prohibit one consenting adult from marrying another consenting adult on the basis of gender or sexual orientation. They say that two distinct classes have been created namely those who have the capacity to marry and those who lack the capacity to marry by reason of the fact that they are of the same sex. It is argued that in the creation of two classes the traditional test for such classes is that articulated in Brennan v. Attorney General  I.L.R.M. 449 at 480, to the effect that a classification must be:
The argument of the plaintiffs was to the effect that there is a fundamental right under the Constitution to marry. It was accepted that that is not an express right but is a right implicit in the Constitution. It is an express right under the European Convention. So far as there may be legitimate restrictions placed upon the right to marry it was argued that the interference with the right to marry if based on a classification like gender or sexual orientation places the burden to justify that restriction on the State and becomes proportionately higher. It was pointed out that in the case of same sex marriage there is a complete ban or exclusion of the right to marry for a particular class of people. The judgment in Brennan v. Attorney General referred to above was examined in some detail. That case concerned the rateable valuation of land for farmers who were assessed to income tax on the basis of the rateable valuation of their land. The assumption was that the higher the rateable valuation of the land, the more valuable the land would be and therefore the income that the farmers had was likely to be higher and they should therefore pay a higher level of income tax. In other words income tax was assessed not by reference to actual earnings but by reference to the rateable valuation of land. The legislation concerned was struck down as being in breach of the equality provision of the Constitution and because the necessary relationship and proportionate relationship between the rateable valuation criteria and the income tax liability was not established. Barrington J. at p. 480 of his judgement referred to the concept of invidious discrimination. He stated:
“Therefore, it would appear there is no unfair discrimination provided every person in the same class is treated in the same way.”
No doubt this is true but it might be prudent to express what is perhaps implied in it, that the classification must be for a legitimate legislative purpose, that it must be relevant to that purpose and that each class must be treated fairly.”
Reference was also made to the jurisprudence of the U.S. Supreme Court when dealing with equality issues. In that jurisdiction the level of scrutiny applied to legislation depends on the category of discrimination involved or the level of state interference with fundamental rights implicit in the U.S. Constitution. Without referring to in any great detail to the submissions made in this regard, I note that the point being urged on the court is that whilst the Irish Courts have not adopted the rigid categories of classification of strict scrutiny, intermediate scrutiny or heightened review used in the U. S., there is a concept of suspect classification which carries a presumption of unconstitutional discrimination and which shifts the evidential burden of justification to the State. It was noted by the Supreme Court in Re Article 26 and the Employment Equality Bill  2 IR 321 at p. 347:
The argument of the plaintiffs is thus that the State has created two classes namely those who have the right to marry, namely, heterosexual people and those who are not entitled to exercise the right to marry because they are homosexual. The distinction is based on sexual orientation and indeed gender based and as such calls for a justification to be proffered by the State for making that distinction.
Counsel for the plaintiff then proceeded to look again in more detail at the four justifications that they anticipated would be relied on by the State in order to justify the State’s view that the right to marry does not extend to same sex couples.
It was submitted that it would be useful to consider in more detail what is meant by the right to marry and what are the key ingredients of marriage as an institution. Reference was made to the provisions of article 41.1 of the Constitution and I think at this point it would be useful to set out its provisions:
2˚ The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the nation and the State.
1˚ The State pledges itself to guard with special care the institution of marriage, on which the Family is founded, and to protect it against attack.
2˚ A court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that –
Apart from the constitutional provisions reference was made to three Articles under the European Convention on Human Rights which are, it is submitted directly relevant to the facts of this case, namely articles 8, 12 and 14. Article 12 is as follows:
In this regard counsel for the plaintiffs referred to a number of decisions dealing with the right to marry in the U.S. and elsewhere. The first case dealt with was that of Loving v. Virginia 388 U.S. 1 , a case which declared unconstitutional a legislative ban on inter-racial marriage in Virginia and a number of other States. Reference was also made to the decision in Zablocki v. Redhail 434 U.S. 374 and the case of Turner v. Safley 482 U.S. 78. Zablocki was an important decision in emphasising the fundamental nature of the right to marry. The Turner case was a case concerned with two prison inmates who challenged a regulation to the effect that two prison inmates could only marry with the prison superintendent’s permission and that such permission could only be given where there were “compelling reasons” to do so without defining what compelling reasons might be. It was accepted in the course of the argument in that case that there was no possibility of acts of sexual intercourse or procreation occurring between the two prisoners and accordingly that case whilst dealing with some of the key attributes of marriage proceeded on the basis that the ability to procreate was not one of them. The state had argued that there was a legitimate interest in not jeopardising prison security but though there were legitimate security concerns, the regulation was struck down as an exaggerated response to those concerns.
On the basis of the Irish authorities referred to and the other authorities referred to above the submission on behalf of the plaintiff is that the right to marry is fundamental to every adult and permitted even to individuals whose fitness for marriage and or parenthood can be called into question.
Counsel then made lengthy submissions on a number of judgments dealing with the ECHR and in particular Article 12 thereof. The first of the cases referred to was the decision in the case of Goodwin v. U.K.  35 EHRR 447. In that case the European Court of Human Rights held that post-operative transsexual persons have the right to marry a person of the same birth sex. It was noted by the court in that case as follows:
“Article 12 secures the fundamental right of a man and woman to marry, and to found a family; the second aspect is not however a condition of the first and the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first limb of this provision.”
Reference was also made to the decision in the case of I. v. U.K.  36 EHRR 53. That case came to a similar conclusion as was reached in the Goodwin case. The issue in that case was whether the allocation of sex in national law to that registered at birth was a limitation impairing the very essence of the right to marry. The point of referring to those cases is that they establish that under the Convention there is an entitlement of two people who both by birth and by biology are of the same sex to have a right to marry under the Convention. It was accepted that the decisions do not themselves determine or conclude that there is a Convention right to same sex marriage but simply that the right to marriage is not confined to biological man and biological woman. However, the emphasis placed on these two decisions by counsel for the plaintiffs was for the purpose of enforcing the point that procreation was not one of the key issues in what is involved in the right to marry. I do not propose to deal with that aspect of those two decisions but it does seem to me that those decisions are of significance and in that regard I will refer to them subsequently.
Reference was also made to the decision in the case of Karner v. Austria  EHRR 528. That case concerned article 8 and article 14 of the Convention. It was held by the court in that case under article 14 in particular that:
Reference was also made by counsel to a decision of the Supreme Court of Hawaii in a case of Baehr v. Lowen, 852 P. 2d 44 , the significance of which, is that it was the first State in the United States in which a State Supreme Court came to the conclusion that the prohibition on same sex marriage was a gender based discrimination. As such the burden rested on the state to justify the prohibition. A commentary on the dissenting judgment in that case was published by Professor Andrew Coppelman in New York University Law Review. Counsel for the plaintiffs referred to his comments as follows:-
Having made those submissions counsel again turned to the likely justification which they anticipated would be proffered to justify the prohibition on same sex marriage. In that context counsel looked again at a number of decisions which have been mentioned before namely Murray v. Ireland and Foy v. An tArd Chlaratheoir. Reference was also made to the Mcgee decision and counsel quoted extensively from that in the context of the procreation argument. I will be returning to these decisions later but as I have already pointed out the procreation argument is not one which I need to consider. I would however note that reference was made in addition to the decision of the U.S. Supreme Court in Griswold v. Connecticut 381 U.S. 479 , which established in U.S. jurisprudence the unenumerated fundamental right to marital privacy. Counsel referred in particular to a passage from the majority opinion of the court delivered by Douglas J. as follows:-
We deal with a right of privacy older than the bill of rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political fates, a bi-lateral loyalty, not commercial or social projects. Yet it is in association for as noble a purpose as any involved in our prior decisions.”
Counsel pointed out that in their argument they are saying that the term marriage as used in the Constitution and indeed under various statutory provisions for example in the tax code can be interpreted in a way that encompasses same sex marriage which does not involve any rewriting by the court of any statutory definition because there is no statutory definition and indeed no constitutional definition of “marriage” or the “right to marry” because the term “right to marry” is not expressly mentioned in the Constitution and therefore falls to be interpreted by the court as one of the unenumerated rights under the Constitution.
That decision was followed by other courts in Canada and ultimately it led to the acknowledgement of the right to same sex marriage throughout Canada.
Whilst counsel for the plaintiffs referred to that case in the context of their argument on the issue of procreation it is clear that great reliance is placed on the decision in that case by the plaintiffs in urging this court to interpret the right to marry as encompassing a right to marry a person of the same sex.
Similar issues also arose in a number of cases in the United States. One of those was the decision in Baker v. Vermont 744 A. 2d 864 (Vermont Supreme Court, 1999) firmly expressed a view that the supposed connection between the prohibition on same sex marriage and the objective of furthering the link between procreation and child rearing as an extreme logical “disjunction”.
Counsel then referred to a number of other U.S. decisions. One of those was the case of Lawrence v. Texas 539 U.S. 558, in which the U.S. Supreme Court struck down an anti sodomy law in Texas as being unconstitutional. The decision was referred to because of the discussion by the Supreme Court of the nature of the same sex relationship. In turn it was followed by the decision in the case of Goodridge v. The Department of Public Health 440 Mass. 309, (Supreme Judicial Court of Massachusetts, 18th November 2003). The Goodridge case was referred to extensively by counsel for the plaintiffs. In the first instance that case dealt with the issue about procreation but it also deals with many of the other arguments put forward on behalf of the plaintiff in this case. It is a case that deals expressly with the issue of same sex marriage. In that case it was held that the same sex marriage ban failed the constitutional test both as a matter of equal protection and it also failed the due process clause requirement that nobody could be deprived of their liberty without due process of law. In dealing with that case it had been argued that the regulation of marriage was based on the traditional concept that marriage’s primary purpose is procreation. Marshall C.J. stated that:-
Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married …
People who cannot stir from their deathbed may marry …
it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children that is the sine qua non of civil marriage.”
The next argument dealt with by the plaintiffs related to the possible justification for the ban on same sex marriage that children are better off if raised by a heterosexual couple. A great deal of the evidence in this case concerned the issue of research on this subject. I have already summarised the evidence of Professor Green in this regard, together with the evidence furnished by Professor Casey and Professor Waite on behalf of the State. The point made on behalf of the plaintiffs was that even if one accepted that the State could legitimately have as a public policy goal that children should for preference be raised in an opposite sex household rather than a same sex household, could it be argued that a prohibition on same sex marriage was reasonably related to the supposed legislative purpose of encouraging child rearing in opposite sex families while still treating each class fairly. It was argued that if the relevant justification invoked by the State is the welfare of the children, then the real question is whether the children of gay couples would somehow be better off by virtue of the prohibition on their parents being legally married. It was submitted that clearly they are not better off. Indeed they may be worse off in certain material respects. The point was made that the real effect of the prohibition is simply to prevent children who are already being raised in same sex households from the protection and benefits of marriage. In other words the prohibition punishes the child for the “sins of the parents”.
The third argument anticipated by the plaintiff and considered by them is that the definition of marriage by reference to history and tradition is a union between man and woman and that a constitutional right to marry cannot as a matter of definition encompass same sex marriage. This argument could be summarised by saying that although marriage is not defined by statute or by the Constitution it is nonetheless commonly understood that in common law jurisprudence the common understanding of marriage is that it is a union between a man and a woman. It was accepted that references through the centuries to marriage and the right to marry were in the context of marriage as a union of man and woman. Equally it was accepted that the framers of the 1937 Constitution in referring to marriage and the family, were thinking in the context of a union between man and woman. It was pointed out that many cases dealing with the question of marriage do so in that context because the point at issue did not involve any issue as to whether marriage could encompass same sex marriage. So for example in the case of T.F. v. Ireland referred to above, Hamilton C.J. at p.373 stated as follows:-
Counsel also referred to the decision of McKechnie J. in the Foy case referred to above where he stated as follows at p. 130 of his judgment:-
“…the Constitution makes it clear that the concept and nature of marriage, which it enshrines, are derived from the Christian notion of a partnership based on an irrevocable personal consent, given by both spouses which establishes a unique and very special life-long relationship.
In this and in the neighbouring jurisdiction (see Corbett v. Corbett) it is crucial for legal purposes that the parties should be of the opposite biological sex. Indeed Article 12 of the European Convention on Human Rights is equally so predicated. All of its judgments above mentioned confirm this. Accordingly in my view there is no sustainable basis for the applicants submission that the existing law, which carries the impugned provision which prohibits the applicant from marrying a party who is of the same biological sex as herself is a violation of her constitutional right to marry.”
In coming to this conclusion, counsel referred again to the case of Ghaidan v. Mendoza. The language used in the relevant English statute as to the right of a survivor to continue residing in rented accommodation following the death of the other was as follows:-
It was accepted by counsel that the definitional argument does have a powerful appeal; the idea that marriage should be confined to heterosexual couples because that is what marriage has always been. However it was pointed out that constitutional interpretation cannot take place in a vacuum, in effect ignoring the changes in the cultural context, changes in the social morass of a society in which the court is called upon to interpret the Constitution. It was pointed out that the institution of marriage itself has undergone change over the centuries. Therefore the argument was made that one cannot simply rely on the concept that because marriage has always been defined as a union between man and woman that its boundaries must now be determined by that criterion alone. In that regard reference was made to a number of changes in the nature of marriage that have been recognised over the centuries. In this regard great emphasis was placed on the decision of the Supreme Court of Canada in the case of Reference re Same Sex Marriage  3 SCR 698. In that case it was held by the court that the definition of marriage is not constitutionally fixed. In that case it had been argued that the institution of marriage is fixed in its meaning. The court stated at paragraph 25 of the judgment as follows:
“The fact that no woman had served or has claimed to serve such an office is not of great weight when it is remembered that custom would have prevented the claim being made or the point being contested. Customs are apt to develop into traditions which was stronger than law and remain unchallenged long after the reason for them has disappeared. The appeal to history therefore in this particular matter is not conclusive.” Lord Sankey L.C. acknowledged, at p. 134, that “several centuries ago” it would have been understood that “persons” should refer only to men. Several centuries ago it would have been understood that marriage should be available only to opposite sex couples. The recognition of same sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion that the same is true today.”
In their conclusion it was noted by counsel for the plaintiff that marriage is something that most people strive for because it is a life altering and enhancing relationship for those who enter into it and who marry the person they love. It was submitted that the plaintiff have a constitutional right to marry one another. it was further submitted that public or moral condemnation by the majority could be no reason for the court not to vindicate their constitutional rights. That concluded the submissions on behalf of the plaintiffs.
At the conclusion of the plaintiffs case a document which was a draft statement of evidence from Professor Kathleen Lahey, a Professor in Queens University Kingston Ontario was furnished to the court. This related again to the issue of private international law. There was some objection to the document being handed in by counsel on behalf of the defendants although it was accepted that the matter could be furnished de bene esse. I received the document on that basis although it was accepted by counsel on behalf of the plaintiffs that the private international issues as such are not of real assistance in relation to the fundamental issue at the heart of this case namely whether there is capacity to marry in accordance with Irish law.
The Defendants’ Submissions
Paul Gallagher S.C. opened the submissions on behalf of the defendants herein. He pointed out that in opening this case, counsel on behalf of the plaintiffs stated that the first named defendants the Revenue Commissioners had acted unlawfully in interpreting the provisions of the Income Tax Code relating to a “husband”, “wife” or spouses as not extending to the plaintiff in the present case and that that was wrong as a matter of law. He submitted that the suggestion that there was a mis-interpretation of the statute by the official of the Revenue Commissioners who responded to the letter addressed to the Revenue Commissioners was wrong. He stated that the ordinary and natural meaning of the words used in the relevant statutory provisions clearly relate to the union of a man and a woman and nothing was advanced to suggest that it should or could encompass the plaintiffs relationship in the present case or the relationship of other cohabiting persons.
Counsel referred to the principles of statutory interpretation and made a number of points in that regard, namely:
1. The ordinary and natural meaning of the said words relate to the union of the man and a woman and on any analysis does not encompass the plaintiffs or their relationship.
2. It is clear from the scheme context and purpose of the impugned provisions that there is no basis for departing from the ordinary literal meaning of the words at issue.
3. When the words at issue are considered in context and in conjunction with other relevant words in the legislative provisions as they must it is impossible to construe the words at issue in encompassing same sex couples.
4. The conclusion that the terms upon which the plaintiffs rely do not encompass same sex couples or indeed heterosexual cohabiting couples is underpinned by the legislative history of the impugned legislation and the constitutional provisions in the light of which they must be construed.
5. There is no requirement to construe the impugned legislation in accordance with the asserted constitutional right to same sex marriage because quit simply, the Constitution does not guarantee or protect any such right.
Counsel referred to the history of the relevant provisions which were enacted to reflect the ruling of the Supreme Court in the case of Murphy v. Attorney General  241. In support of his argument counsel referred to the decision of the Supreme Court in the case of McGrath v. McDermott  I.R. 258 in which it was stated by Finlay C.J. that “the functions of the courts in interpreting a statute of the Oireachtas is strictly confined to ascertaining the true meaning of each statutory provision”. Accordingly it was argued that what the plaintiffs seek to do in this case is to re-write the statutory provisions as opposed to strictly speaking interpreting them. That amounts to amendment of the legislation.
Counsel then referred to the provisions of s. 2 (2) (e) of the Civil Registration Act 2004 which provides that for the purposes of that Act “there is an impediment to a marriage if … both parties are of the same sex”. It was noted that there is no challenge to the constitutional validity of that provision notwithstanding that An tArd Chlaratheoir in responding to the letter from the plaintiff applied the provisions of that Act. Counsel placed significant reliance on the fact that there was no challenge to the constitutional validity of that provision.
Counsel then proceeded to analyse carefully the manner in which the proceedings were first constituted and the way in which they have developed as the case proceeded. Counsel pointed out in the original statement of grounds in the initial judicial review application the plaintiffs had not sought a declaration that if the plaintiffs marriage in British Columbia was not entitled to recognition in the State, that the plaintiffs have a right to marry each other in the State. Such a right was sought for the first time in the statement of claim herein. In essence what is now sought on behalf of the plaintiffs is to assert that there is a constitutional right to same sex marriage as opposed to the original issue raised in the pleadings to the effect that in failing to recognise the marriage of the plaintiff in Canada and to apply the provisions of the tax law relating to married couples to the plaintiffs that they had been discriminated against in an unconstitutional manner together with a declaration that the provisions of the tax code if it did not include same sex couples in references to husband wife spouse and marriage were unconstitutional. Counsel argued that the term marriage in the Constitution is emphatically confined to a union of a man and woman and does not encompass a relationship of two persons of the same sex. Accordingly in applying the established method of interpreting the Constitution it was argued that the plaintiffs do not have a right to marry which is protected either expressly or impliedly by the Constitution, the plaintiffs relationship does not constitute a marriage within the meaning of the Constitution and the fact that the impugned legislative provisions do not treat it as such does not entail any violation of any of the provisions of the Constitution. Accordingly it was argued that the plaintiffs claim should fail ad limine.
In addition it was pointed out that far from being a case which raised the issue of recognition of a foreign marriage, by virtue of the provisions of the Civil Registration Act 2004 it was clear that recognition could not be given to the marriage of the plaintiff.
Counsel then dealt with the argument that the plaintiffs have been discriminated against and pointed out that such a contention would also fail on their argument that the right to opposite sex marriage is one which is deserving of constitutional protection and privacy and thus is a justification for any distinction between the position of the plaintiffs and married couples. It was pointed out that the plaintiffs are not treated in law any differently than any other non married couples. They are treated the same as cohabiting heterosexual couples in accordance with the manner in which the Tax Code has been formulated. Counsel expanded on these points in their written submissions. It was stated that the legislative provisions do not constitute an unjust attack on the plaintiffs property rights or discriminate against them on the grounds of gender or sexual orientation contrary to Article 40.1, 40.3, or 43 of the Constitution. The reasons given are set out hereunder.
(i) The distinction which underlines each of the impugned legislative provisions is as between married couples and all other relationships as the plaintiffs have accepted.
(ii) Moreover this legislative distinction is not only one which is contemplated by the Constitution; it is clearly authorised by it; see, in particular, Article 40.3.1 The impugned legislative measures distinguished between marriage an institution the state is obliged to guard with special care – and all other relationships.
(iii) The classification at issue in these proceedings were made for a legitimate constitutional purpose, they are relevant to that purpose and they treat each class fairly in the sense that all married couples (as distinct from all other persons) are eligible to receive the benefits in question.
(iv) The classifications at issue are clearly justifiable on the basis of the express entitlement which Article 40.1 confers on the state to have regard in its enactments to “differences of capacity, physical and moral, and of social function”. It is well established in Irish constitutional jurisprudence that the social function of married couples is such as to entitle the State in its enactments to treat married couples differently from other types of relationship for the purpose of Article 40.1. (See Murphy v. Attorney General).
(v) A difference in treatment between married couples and other relationships (sexual or otherwise) is expressly contemplated by Article 41 of the Constitution and cannot, therefore, constitute a violation of other provisions of the Constitution (see Dillane v. Ireland  ILRM 167).
(vi) The ambit of the obligation which Article 41.3.1 of the Constitution imposes on the State brings into sharp focus the fundamentally misconceived nature of the plaintiffs claim that they are being unconstitutionally discriminated against and deprived of their property rights. In that context a number of decisions were relied on.
Counsel commented on the fact that the plaintiffs’ contention is that because there is not a definition of marriage in the Constitution that permits or enables the court to apply some ill defined approach to extending the concept of marriage to include same sex couples. The legal basis for doing so has not been identified save to say that the Constitution is a living document that is not stuck in the permafrost of 1937 but there is no jurisprudential basis put forward which would enable the court to radically alter the concept of marriages provided in the Constitution save that it has been submitted on behalf of the plaintiffs that the consensus of what marriage means is changing. It was submitted that what the court was requested and asked to do was to rewrite the plain wording of Article 41. This is so notwithstanding that the legislature as recently as 2004 made it plain that in Irish law, statute law and common law marriage does not encompass same sex couples. It was pointed out that on the plaintiffs’ case the Constitution when enacted did not protect any implied right to any same sex marriage. The height of the plaintiffs’ case is that the plaintiffs are of the view that attitudes or the consensus in respect of marriage as a union between a man and woman is changing and that the Constitution should reflect such change. It is submitted by the defendants that the plaintiffs claim amounts to an application to the court to amend the Constitution and thus is misconceived.
Counsel for the defendants then dealt with the submissions of the plaintiff to the effect that the impugned legislative provisions are not compatible with Articles 8, 12 or 14 of the European Convention. Reference was then made to the recent decision in Wilkinson and Kitzinger v. Attorney General. Although the plaintiffs sought to distinguish that decision on the basis that in England there is provision for a form of civil partnership which is recognised and that that affords a wide margin of appreciation of compatibility with the Convention it is submitted that the right to marry protected by the Convention is the right to heterosexual marriage and not same sex marriage.
Counsel then indicated that an analysis of the decisions in the United States and in Canada would be undertaken. Before undertaking such analysis it was pointed out that those decisions deal with a different constitutional provision that those applicable in this jurisdiction particularly in terms of the institution of marriage. It was pointed out that the Goodridge decision to a large extent stands on its own and that a number of states have rejected the concept of same sex marriage both before and after the Goodridge decision. In the American context the issue being dealt with before the court arose in relation to the issue of due process and equality under the American Constitution.
Counsel then examined the provisions of the Constitution in relation to marriage in more detail. In particular reference was made to Article 41 and 42 of the Constitution. It was submitted that the position of marriage in society is that it is a social institution of profound significance. That this is so has been recognised in the Constitution. Indeed the express terms of the Constitution are a measure of the significance and importance of the institution of marriage.
The point was made that even where the concepts contained within the constitution are not expressly delineated the court can undoubtedly interpret such abstract concept in accordance with prevailing ideas and mores. It was submitted this does not mean that the words of the Constitution can be divorced from their historical context. It was noted that the context in which recognition has been given to the institution of marriage is the context of the family which is described as the natural primary and fundamental unit group of society. It was submitted that in looking at ht provisions of Article 41 as a whole there could be no doubt that what is in mind is the family constituting a mother father and the children of a heterosexual marriage. It is in that context that the State guaranteed to protect the family in its constitution and authority as the necessary basis of social order. Counsel referred expressly to all of the provisions of Article 41 dealing with the family. It was pointed out that there was no dispute between the parties that in 1937 there was no doubt what was understood by the institution of marriage and the special protection that was given to marriage in the Constitution upon which the family is founded namely heterosexual marriage. Accordingly notwithstanding the contentions on behalf of the plaintiff that the Constitution now in 2006 means something quite different from what it was always understood to mean, it is submitted that to accept the submissions of the plaintiff would be in effect to turn the clear and unambiguous language of the Constitution on its head by judicial intervention on some ill defined basis because of a changing consensus as to what the Constitution should now mean. Counsel then proceeded to point the difficulties of interpreting the Constitution on the basis of a changing consensus. It was argued that the appropriate way to affect constitutional amendment was through a process of debate based on studies or science or whatever arguments are relevant for the purpose of convincing people that the Constitution ought to be changed. It was submitted that the court in effect is being requested to disregard what the Oireachtas as recently as 2004 provided for having regard to the understanding of marriage. For an example of the consensus as to the concept of marriage there could not be a more clear or unambiguous statement of the consensus than the enactment of that legislation in 2004, albeit, sometime shortly before the commencement of these proceedings.
Reference was made to an interesting commentary in an academic journal dealing inter alia with the provisions of the Constitution in the context of a study of legal recognition of same sex partnership published in 2001 and edited by Robert Wintemute and Mads Andenaes. Having referred specifically in the course of that document to the provisions of Article 41 the author of the contribution in relation to Ireland noted “while the family protected by the Constitution is not specifically defined therein, its contours can be fairly readily determined by looking at the provision as a whole”.
Counsel on behalf of the defendant then proceeded to analyse a number of decisions of the European Court of Human Rights in the light of the ECHR. Reference was made at length in the decision of Wilkinson and Kitzinger v. Attorney General. The facts of that case are not dissimilar from the facts of the present case as the petitioner and the first respondent in that case who were then and remained domiciled in England went through a form of marriage, lawful and valid by the law of British Columbia which permitted and recognised as valid marriages between persons of the same sex. In that case it was argued that the provision of s. 11(d) of the Matrimonial Causes Act 1973 and s. 1(1)(b) and Chapter 2 of Part V of the Civil Partnership Act 2004 were incompatible with the obligations imposed on the United Kingdom by the European Convention on Human Rights being contrary to Article 8, 12 and 14. The applicants in that case also sought to have their Canadian marriage recognised and referred to the fact that dealing with the marriage or equating the marriage to the status of a civil partnership was in effect down grading the status of her Canadian marriage. Accordingly and in effect what was sought was a declaration that the marriage was a valid marriage. As pointed out previously, their application was unsuccessful.
S. 11 of the Matrimonial Causes Act 1973 is in very similar terms to the provision of s. 2(2)(e) of the Civil Registration Act 2004. In the course of the judgment reference was made to the ordinary application of the rules of private international law to the effect that the capacity to marry of the parties in that case was governed by the law of England. It would be useful to refer at this point to the relevant provisions of the European Convention on Human Rights. Article 8 (right to respect for private and family life) provides:
1. “Everyone has the right to respect to his private and family life, his home and correspondence.
2. There should be no interference by a public authority with the exercise of this right expect such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well being of the country, for the prevention or disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 12 (Right to Marry) provides: “men and women of marriageable age have the right to marry and found a family, according to the national laws governing the exercise of this right.”
Counsel then referred to the concept of marriage in our jurisprudence and in that regard referred to a number of specific cases. He referred to the decision in the case of T. v. T.  ILRM 321, and in particular the judgment of the Chief Justice at p. 374, which he argued was an unambiguous explanation by the Supreme Court of the special status of marriage and its meaning in the Constitution. He also referred to the decision in the case of B. v. R.  1 I.L.R.M. 491, a decision of the High Court, (Costello J.) as follows:
Having referred to those decisions, counsel on behalf of the defendants submitted that the inescapable fact is that so far as the plaintiffs are concerned whatever the principle of interpretation may be the institution of marriage has been repeatedly and consistently interpreted as involving opposite sex couples and not same sex couples. It was urged on the court that the contention of the plaintiff, that there is some right to marry distinct from the right to marry in the context of a marriage recognised by the Constitution, is unsustainable, without any authority whatsoever and inconsistent with the plain wording and meaning of the Constitution. The right to marry is a right to marry in the form recognised by Constitution and given the special protection contained in Article 41. No questions of recognition arise it was submitted and no questions of inequality arise because if the interpretation placed on the right to marry by the defendants is correct it is simply a right to marriage by heterosexual couples and not same sex couples and thus it is submitted the plaintiffs claim must fail on that ground.
Counsel concluded his submissions on behalf of the defendant by referring to a number of authorities which give guidance in relation to the interpretation of the Constitution and how one should approach the interpretation of the Constitution. I accept his submissions in that regard and as there was nothing of controversy in his submissions in that regard I do not propose to set them out.
The final point made was that since the criminal law has changed in 1993 in relation to homosexual acts between consenting males, a great deal of legislation has been passed dealing with the elimination of discrimination by reason of sexual orientation. Having referred to those legislative changes he noted that notwithstanding those changes, nonetheless the Civil Registration Act was enacted in 2004 reaffirming the position in relation to opposite sex marriage.
Donal O’Donnell S.C. then continued the submissions on behalf of the defendants. He looked in particular at the United States jurisprudence and in particular the equal protection clause of the 14th Amendment and the question as to whether in certain circumstances the standard of strict scrutiny, rational scrutiny or some other intermediate standard was applicable. Allied to that is the concept of suspect classifications. He pointed out that no Irish Court has adopted such a rigid mechanical approach in relation to fundamental rights analysis. He argued that there was no basis in the Irish Constitution for adopting such a system.
He made the point that if there was a right to marry the person one loves as suggested by the plaintiffs there would be no logical reason to maintain any of the other defining features of the law of marriage. He noted that there were three fundamental requirements of the law as to what marriage consists of in the Irish Constitution since 1937, namely that it is the union between two people, man and woman and that the marriage was indissoluble. One of those components has been changed, but counsel emphasised that that change was brought about by referendum. He argued that if the second component namely the requirement that the parties be of opposite sex, then there was no logical reason why there should be any other limits on the right to marry. However he pointed out that the Constitution has made it clear that the institution of marriage is not simply about the private relationship between two people. It relates to the role of marriage in society and its relationship to the family and the family’s relationship to the social order posited by the Constitution.
One of the issues highlighted by counsel was the manner in which these proceedings came before the court. Reference was made to the fact that when leave was originally given in the judicial review proceedings before McKechnie J. there was no claim as such before the court in the judicial review proceedings in which the right to marry was sought. The first time that that arose was in the statement of claim on the basis that if the Canadian marriage was not entitled to recognition then the plaintiffs sought a declaration that they had a right to marry in this jurisdiction. It was emphasised that in the defence to the statement of claim it was expressly pleaded:-
Counsel also identified as a problem the provisions of s. 2.2(e) of the Civil Registration Act, 2004, and that no challenge is made to the constitutionality of that provision.
Counsel then referred to the text of the Constitution and in particular to Article 41 and Article 42. He referred again to the decision in the case of Murphy v. The Attorney General and to a number of the other Irish decisions which have been referred to previously namely B. v. R., T.F. v. Ireland and T. v. T. He also referred to the decision in the case of Foy v. An tArd Claratheoir. He noted that in the Foy decision at p. 130, McKechnie J. commented:
Counsel emphasised that the word marriage as used in Article 41 means the monogamous marriage of persons of the opposite sex and it was pointed out that there was nothing unusual in that. Indeed it was submitted that in other jurisdictions where the argument to the effect that the word marriage can mean same sex unions has been tried and failed even in cases which have favoured the concept of same sex marriage. For example in the case of Halpern and Others v. Attorney General for Canada  65 O.R. (4th) 161, a decision of the Ontario Court of Appeal, it was stated at para. 37:-
Counsel then turned to deal with the issue under Article 40.1. Insofar as a distinction is made between married couples on the one hand and all other forms of relationships the distinction is not made on the grounds of sexual orientation or indeed gender. He made the point that insofar such a distinction exists it is a distinction that does not offend Article 40.1 because it is a constitutional distinction that is to say a distinction made by the Constitution itself. In regard to the particular issues raised by the plaintiffs in this case, it was pointed out that the tax benefits at issue are provided to married couples in contradistinction to any other couples be they co-habiting heterosexual unmarried couples, co-habiting siblings or co-habiting same sex couples. It was pointed out that in Article 40.3.1 the Constitution expressly requires the State to:
The point was then made that in response to the arguments in respect of the right to marry and to Article 41 that one main argument was raised namely that the Constitution is a living instrument and can be adapted by interpretation to keep it relevant to changing times. In support of the argument made in that regard reference was made amongst other things to a passage from Kelly on the Irish Constitution 2003 at 24 to 25 where a discussion on the interpretation on the provisions of the Constitution was contained. It was stated as follows:-
“Thus, it may be said that where the Constitution carefully defines certain powers, rights, privileges and procedures (as in the case, for example, of the powers of the President, the scope of parliamentary privilege, the regulation of Dáil and Seanad elections and definition of a money bill) the courts must follow the text carefully, aided, where necessary, by a historical understanding of what the framers sought to achieve. But it would equally seem that many fundamental concepts – trial in due course of law, equality before the law, personal liberty, property rights – were left deliberately vague and imprecise. One can only assume that the drafters intended that the ambit of these clauses would become clearer in the light of experiences they were applied, to novel and ever changing facts and circumstances. Indeed, as the Irish example is clearly shown, it is through the accretian of case law alone that such general clauses gather depth and meaning. Indeed the method of interpretation of these general clauses with frequent judicial warnings about the undesirability of a strict construction ‘which would allow the imperfection or inadequacy of the words used to defeat or pervert any of the fundamental purposes of the Constitution’ – tends to resemble a traditional common law method of adjudication (with its reliance on emerging doctrine from the case law) in contradistinction to any strict exegesis of the actual text of the Constitution.”
In support of that contention reference was made to a number of decisions including Wilkinson and Kitzenger v. Attorney General, Rees v. United Kingdom and to a number of the decisions of the European Court of Human Rights.
In the context of Article 8 it was noted that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities (see Hannover v. Germany 59320/00 (24th June 2004)), para. 57. Reference was made also to the decision in the case of Johnston v. Ireland  9 E.H.R.R. 203. That was a case in which the absence of a law permitting divorce in Ireland prior to the referendum in 1995 was challenged on the basis that it interfered with the right to marry, where those who sought the right were already married and were unable to marry because of the absence of divorce. The argument in that case was rejected by the court which stated at para. 52 and 53 of the judgment as follows:-
It is true that the Convention and its protocols must be interpreted in the light of present day conditions. However the court cannot by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate.”
It was also noted that in the case of Mata Estevez v. Spain the Court of Human Rights rejected the notion that long term homosexual relationships fell within the scope of the right to respect core family life protected by Article 8 of the Convention. Finally in regard to this topic counsel referred in detail to the judgment of Potter P. in Wilkinson and Kitzenger in which he analysed at length a number of the decisions of the European Court of Human Rights. In concluding his submissions on the European Convention, counsel made the point having referred again to the judgment in Wilkinson and Kitzenger in which Potter P. noted that an English Court would decline to recognise or apply what might otherwise be an appropriate foreign rule of law when so to do would be against English public policy. He indicated that English public policy was demonstrated by s. 11(c) of the MCA and the relevant provisions of the CPA and counsel submitted that Irish public policy is also indicated and demonstrated by the terms of the Civil Registration Act 2004.
Finally it was submitted that the European Court jurisprudence does not bring the plaintiffs case any further because if anything the Convention is more explicit than the 1937 Constitution in that it refers expressly to the right of men and women to marry. Accordingly, those words in the Convention, can only mean opposite sex marriage.
Counsel for the defendants then turned to a consideration of a number of the decisions from the United States. He noted the reliance placed on Loving v. Virginia, the dissenting judgment of Mr. Justice Scalia in Lawrence v. Texas and in particular Goodridge v. Massachusetts. It was noted that prior to the decision in the Goodridge case there were a number of cases which rejected the concept of same sex marriage and that subsequent to the Goodridge decision a number of other decisions have declined to follow the approach taken in Goodridge. For example in the case of Baker v. Nelson 291 Minn. 310 the Supreme Court of Minnesota held that a Minnesota statute which did not authorise marriage between persons of the same sex did not offend the first, eighth, ninth or fourteenth amendment to the United States Constitution. A similar claim was rejected in the case of Jones v. Halihan 501 S.W. 2d 588 1973, on the basis that the female applicants in that case were not entitled to a licence to marry one another because marriage involves the union of a man and a woman and consequently they were incapable of entering into a marriage. In Dean v. District f Columbia  653 A. 2d 307 it was held by the court of appeals in the District of Columbia that a District of Columbia marriage statute which prohibited the clerk of the Superior Court from issuing marriage licences to same sex couples did not violate the equal protection clause of the U.S. Constitution. It was noted by Terry J. at p. 2 of the judgment in that case as follows:-
Even in the absence of bias or political agenda between the various studies of children raised by same sex couples, the most neutral and strict application of scientific principles to this field would be constrained by the limited period of observation that has been available. Gay and lesbian couples living together openly, and official recognition of them as their children so parents, comprise a very recent phenomenon and the recency of that phenomenon has not yet permitted any study of how those children fare as adults and at best minimal study of how they fare during their adolescent years. The legislature can rationally view the status of scientific evidence as unsettled on the critical question it now faces.”
Finally reference was made on this topic to a decision of New Zealand entitled Quilter v. Attorney General. In that case there was a challenge to a New Zealand statute which did not define marriage but described the institution of marriage and it was held that the Act was based on the traditional common law concept of marriage involving a man and a woman.
Based on all of those decisions, counsel referred to the written submissions of the plaintiffs where it was stated:-
Finally it was noted that there is a very active debate in Irish life on the appropriate response to and the appropriate method of dealing with the demands or needs of homosexual people for recognition of rights of partnership or rights of same sex marriage. It was submitted that the debate would be precluded or distorted by judicial determination at this point. Secondly, it was pointed out that the fact that there is a debate negatives any possible suggestion that there is a consensus because if there was a consensus on the topic of same sex marriage there would be no need for debate. Reference in that regard was made to a number of documents which supported the contention that this was the subject of widespread debate. Papers produced by the Law Reform Commission, the Human Rights Commission and by the Equality Authority were handed in. That concluded the submissions of the defendants herein.
Gerard Hogan S.C. dealt with the closing submissions on behalf of the plaintiffs. He made the point that contrary to what had been stated by Mr. Donnell this court is charged with the task of adjudicating on whether a fundamental right had been infringed. He pointed out that the plaintiffs come to the court to establish that they have a fundamental right to marry and that that fundamental right has been infringed. He pointed out that if the separation of powers argument, had been advanced on behalf of the defendants were successful then decisions such as that in the case of McGee v. The Attorney General would never have been determined.
Counsel then proceeded to deal with a number of specific issues. The first of those related to the provisions of the Civil Registration Act 2004. Although there was criticism of the plaintiffs for not referring to that Act in their proceedings, nor is it to be found in the defence filed on behalf of the defendants herein. Part 1 of the Act, which contains the provision relevant to this case came into force in December 2005, a year after the proceedings herein were commenced. In those circumstances there was no constitutional challenge to its provisions. He argued that if the plaintiffs were to succeed on their main argument the logical corollary would be that the section could not survive constitutional challenge.
Counsel then pointed out that certain provisions of the Constitution contain definitions, for example, Article 15.1 defines the Oireachtas and the composition of the Oireachtas. So far as marriage was concerned the only express provision in relation to it was the exclusion of the possibility of divorce. The other features of marriage were not defined and therefore not set in stone. He added that the Irish version of the Constitution did not advance the argument one way or another in relation to the definition of marriage.
He also noted that in relation to a number of decisions of the courts in relation to marriage, for example, the most recent dictum of Murray J. in the case of T. v. T., while that dictum was worthy of respect and deference nonetheless it was simply a dictum and is not and could not be binding on this court given that the issue of homosexual marriage was not before the court in that case. That was an observation true of a number of other decisions.
He referred to the arguments made in respect of the Goodwin decision and that Article 12 must now be read with the word biological in parenthesis. He argued that this was a fundamental change in the institution of marriage. Given that fundamental change in the nature of marriage, that has effected a change in the fundamental nature of marriage as it has existed since 1937.
Counsel then referred to the American cases and the analysis of those. He pointed out that whilst there have been subsequent decisions rejecting Goodridge on the merits, there were dissenting judgments in those cases and he made the point that there is by no means unanimity in the approach of the courts. Accordingly he argued that Goodridge is not a one off aberration. He pointed out that the consensus in the United States has been, apart from the decision in the Goodridge case and the cases involving the State of Vermont and Hawaii, have been on balance against same sex marriage but nonetheless the issue has been hotly disputed throughout the States which have rejected the concept of same sex marriage.
Counsel then noted one aspect of the evidence which he submitted was of critical significance. That related to the evidence of Professor Kennedy. In particular he highlighted the answer to one of the questions posed to Professor Kennedy and I quote:
A. The modern biological view is essentially that the condition of us all as human beings can be characterised in various ways; one can be young, one can be old; one can be right handed or left handed and homosexuality is one of those features of the human condition. It is an aspect of normality.”
In that regard he referred again to the Canadian decision in the case of reference Re: Same Sex Marriage 2004 3SCR 698 at p. 7/11 where it was stated by the court:
2. Even a progressive interpretation of s. 91(26) cannot accommodate same sex marriage since it falls outside the natural limits of that head of power, a corollary to this point being the objection that s. 15 of the Charter is being used to amend s. 91(26); and
3. In this instance, the intention of the framers of our Constitution should be determinative.
Further in support of the argument as to the Constitution being a living instrument, reference was made to a number of Irish decisions. In particular reference was made to the Sinnott decision.
Counsel then looked closely at Article 41 in detail. The question was posed as to how it could be said, because Article 41 provides that the family is the natural primary and fundamental unit group of society and is a moral institution possessing inalienable and imprescriptible rights, did that exclude same sex marriage. He submitted that no reasons are proffered by counsel for the defendants as to why this is so. Having referred to the fact that a homosexual couple would not have been contemplated as coming within the 1937 understanding of marriage, he argued that as medical science, psychiatry and other disciplines had shown the understanding of homosexuality as it existed in 1937 was wrong and therefore he submitted that the only reason why the plaintiffs in this case cannot be described as a unit group within the meaning of Article 41 is because of habit, custom and tradition.
In his concluding argument he urged the court to consider whether there was an objective justification for the restriction on same sex marriage. He referred again to the judgment in the case of An Blascaod Mór and he concluded by saying that the case put forward by the defendants is not that there is moral disapproval of same sex marriage, it is not that children would be better off in a particular environment but an appeal solely and exclusively to history. He submitted that having regard to the evidence of Professor Kennedy that this generation recognises that which a previous generation did not namely that homosexuality is a perfectly normal and ordinary human condition and thus he submitted that the restriction urged by the defendants cannot rationally stand.
Before dealing with the legal issues and arguments that were made before me, it would be prudent to deal briefly with the evidence. 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.
I had the benefit of a report from Mr. Cremins in relation to the tax position. Subject to one matter which was later clarified, again, there was no challenge to the statement of evidence furnished by Mr. Cremins. 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.
Professor Kennedy’s evidence was of assistance in dealing with the link between the medical and legal approach to the issue of homosexuality. So far as his evidence was concerned I accept his evidence and note that the psychiatric and medical view of homosexuality has advanced considerably in the last thirty years or so. Of the changes, the most significant change is clearly the fact that homosexuality can no longer be regarded as a mental illness or disorder.
The evidence of Professor Green was somewhat controversial. Certainly he was challenged extensively on the conclusions drawn by him as a result of the studies to which he referred. I think it is important to be clear as to the value and weight to be attached to his evidence. It is clear that in many of the U.S. cases and indeed in Canada, similar evidence has been given to the courts in those jurisdictions. It is also clear that such evidence has been vigorously contested there as well. Indeed the affidavit to which reference has been made from time to time sworn by Professor Stephen Nock was in fact sworn in the Canadian decision in the Halpern case. The purpose of the evidence furnished by Professor Green was to demonstrate that children of same sex couples or raised by same sex couples are no worse off from an emotional or any other relevant perspective than the children of or raised by heterosexual couples. In his evidence he outlined the details and findings of a number of reports which have carried out research in this area. On the basis of those studies he came to a conclusion to the effect that there was great consistency in the findings from the various studies that had been conducted in the U.S., England and Continental Europe spanning at least two decades. It was his view that no clinically significant differences are found comparing boys and girls raised by lesbian mothers solo or with a female partner when compared with boys and girls raised by single heterosexual mothers or heterosexual mothers living with the father of their children. As has been described earlier he was vigorously cross examined in relation to the methodology of the studies he relied upon and the ability to draw conclusions from those studies having regard to the methodology employed in the studies. That criticism extended not just to the studies he had reviewed but to those he himself had been involved in.
Having considered his evidence carefully, taking on board the evidence that I also heard from Professor Casey and from Professor Waite, I think that one must have some reservation in relation to the conclusions drawn by Professor Green. 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.
Professor Green himself did not demur from the comment in the American Journal Paediatrics already quoted above but worth repeating:-
The evidence of Patricia Casey largely dealt with the issue of the methodology employed in the various studies described by Professor Green. As is clear from my comments on the evidence of Professor Green, I accepted her evidence in relation to the question of methodology used for conducting the research relied on by Professor Green and commented upon in the affidavit of Professor Nock. It is not necessary to comment further on that issue. So far as the rest of her evidence is concerned I think it is fair to say that she agreed with the evidence given by Professor Kennedy to the effect that homosexuality is not a psychiatric illness and that in effect that has been the view in psychiatric medicine since the 1970’s in America and in Europe. She also agreed with the evidence of Professor Kennedy to the effect that stigma or discrimination experienced by people can have an affect on their psychiatric well-being. She noted that this was not something unique to homosexuals but a reaction to discrimination or stigma generally.
Professor Waite’s evidence focused on her research on the family structure and the institution of marriage in the context of heterosexual marriage. She concluded that the evidence overwhelmingly supported the conclusion that the social institution of marriage is beneficial for those involved. Equally benefits accrued to children. I accept her evidence in this regard. She dealt with the affidavit of Professor Nock and the evidence given by Professor Green. When she was cross examined about the book she had written entitled “The Case for Marriage” she explained that she was neutral in relation to the issue of same sex marriage because the evidence simply was not there to indicate one way or another as to the consequences of same sex marriage. Having considered her evidence it reinforces the view that 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.
I do not think it is necessary to comment in any way on the material that was furnished by way of statements of evidence in respect of the position in relation to the validity of the plaintiffs’ marriage in Canadian law.
The final matter I should briefly refer to at this point is the witness statement that was furnished by Dr. Evelyn Mahon a senior lecturer in the School of Social Work and Social Policy at Trinity College Dublin. Her statement of evidence was particularly interesting in that it included an appendix setting out information in respect of relationship recognition in European Union jurisdictions. From that appendix it appears that three countries in the European Union, namely Belgium, The Netherlands and Spain recognise and have a facility for same sex marriage. A number of jurisdictions have a registration scheme for co-habitees. Others give recognition of some kind to co-habitants of the same sex and the opposite sex without a registration scheme. Ten of the countries have no registration scheme or formal recognition for co-habitees of any kind. Ireland is included in that group. A number of countries have registration scheme for same sex couples only and a further number of countries have registration schemes for same sex and opposite sex couples. The one observation I would make is that there is no discernable pattern apparent from the approaches taken in the different jurisdictions.
The question of same sex marriage is one that has been the subject of considerable litigation in a number of jurisdictions around the world as is obvious from the various authorities cited to the court in the course of this hearing. It is a subject that has been debated, discussed and considered from philosophical, religious, medical, psychiatric and social points of view. It is also clear that it is a subject to which no single universal solution has been found. A small number of jurisdictions have provided for same sex marriage. A number have provided for some form of civil partnership. Many countries have no special arrangements in place. No doubt the differences can be explained by virtue of the fact that the phenomenon of same sex couples is of relatively recent origin as is the recognition of the rights of unmarried co-habiting heterosexual couples.
One must remember that although this case has focused on the legal and academic arguments in relation to the concept of same sex marriage, there are two individuals at the heart of this case who have spoken eloquently of the sense of social exclusion they feel by virtue of being denied entry to the institution of marriage. It is clear that they have a long-lasting loving relationship of mutual commitment. They took advantage of changes in the law in Canada which resulted in their marriage in that jurisdiction and prompted the commencement of these proceedings.
It is necessary now to consider the issue that emerged clearly during the hearing of this action, namely, does the right to marry inherent in the Constitution encompass the right to same sex marriage? If not, is the traditional right as interpreted in the impugned provisions 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 as exemplified in cases such as Hyde v. Hyde referred to above, namely “the voluntary union of one man and one woman, to the exclusion of all others.” 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.
Reference was also made to the decisions in the case of McGee v. Attorney General  IR 284, where it was stated by Walsh J. at p. 319:
As I have already indicated, the defendants disagreed with the interpretation placed by the plaintiffs on the passage referred to above from the McGee case. It was pointed out that that case concerned the determination of unenumerated rights and “natural rights antecedent to positive law” as opposed to rights not otherwise identified in the Constitution. The process of considering the Constitution as a living instrument is not one which is available to the interpretation of the Constitution itself as opposed to the interpretation of legislation.
As reference has been made to the decisions in Canada in Halpern and to the Goodridge decision it may be of assistance at this point to refer briefly to some of the authorities from the United States. The Goodridge decision relied heavily on the Loving v. Virginia case to which I have referred above. In the Loving case Warren C.J. stated:-
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:-
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. The passage quoted above from the judgement of Murray J. at p. 681 of his judgement in Sinnott which approved of the suggested guidelines identified by the late Professor Kelly seems to me to indicate the appropriate course for the Court to adopt in interpreting the Constitution in the context of this case.
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 which have already been referred to above, notably the decision of Costello J. in Murray v. Ireland . The Supreme Court decision in T.F. v. Ireland and the judgment of Murray J. in T. v. T The definition was reiterated in Foy v. An tÁrd Claraitheóir although there must be a caveat concerning the use of the words biological man and biological woman given the decision in the Goodwin case. That has always been the definition. Judgment in the T. v. T. case was given as recently as 2003. Thus it cannot be said that this is some kind of fossilised understanding of marriage. 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 as referred to in the passage from the judgment of Walsh J. relied on by counsel for the plaintiffs but I also accept the arguments of Mr. O’Donnell to the effect 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.
If I were to take the words used by Walsh J. in the McGee case, “No interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts”, one would have to ask the question on what basis is the court to interpret or ascertain the prevailing ideas and concepts. It is interesting to note that in the Sinnott case which was also relied on by the plaintiffs in this context, the Supreme Court held that the concept of primary education must be interpreted in the light of practice in 1937 but a majority of the court held that the word “child” in Article 42 must be understood as extending up to eighteen years, that is the present age of majority. If one was to transpose that reasoning to the facts of the present case one would say that one looks at the concept of marriage as it was defined in the light of practice or understanding in 1937 and that issues such as capacity must be understood in the light of prevailing law. So, for example, as was pointed out in the submissions of the plaintiffs it could not be argued that because the marriage age in 1937 was twelve for girls and fourteen for boys that a law which raised the age to eighteen years was unconstitutional on that account.
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.
One of the curious aspects of this case is that the provision referred to in the Civil Registration Act 2004, has not been directly impugned or challenged in these proceedings. I know that that has been explained by counsel for the plaintiffs on the basis that the Act did not come into force until 5th December 2005. Nonetheless the Act is in force, is entitled to a presumption of constitutionality and is to my mind an expression of the prevailing view as to the basis for capacity to marry. I find it extremely difficult to comprehend how an assertion of a constitutional right to marry in these proceedings could incidentally have the effect of rendering unconstitutional an Act passed by the Oireachtas as recently as 2004. If the plaintiffs had brought a challenge to the constitutionality of that Act, of course it would have been necessary for them to rebut the presumption of constitutionality. The plaintiffs have not sought to do so.
Apart altogether from the provisions of the 2004 Act, it was not suggested that prior to the decision of ECtHr in the Norris case, the understanding of marriage could encompass same sex marriage given the state of the criminal law.
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.
I accept the arguments made by the defendants in relation to the issue of discrimination on the basis that the right to opposite sex marriage is derived from the Constitution and thus that is a justification for any distinction between the position of the plaintiffs and married couples. It was accepted in evidence that the plaintiffs are treated the same as cohabiting heterosexual couples in the manner in which the tax code applies to them. They are not treated in law any differently from any other non-married heterosexual couple. On this issue it is interesting to note how the Californian Court in the Woo case dealt with the issue of an alleged infringement of the right of privacy as a consequence of the exclusion of same sex marriage. At p. 48 of the judgment McGuinness P.J. stated:-
It is now necessary to consider the issues in respect of the European Convention on Human Rights. Counsel for the plaintiff had submitted that in the European Convention on Human Rights there was no definition of marriage provided. They then referred to the decision in Goodwin and noted that the court in that case recognised that there is under the Convention an entitlement of two people who both by birth and biology are of the same sex to have the right to marry under the Convention whilst accepting that the right to marriage is not confined to biological man and biological woman. Counsel for the defendants pointed out that Potter J. in the case of Wilkinson and Kitzenger had rejected that argument. I think that for the purpose of completeness it is necessary to refer at length to a number of passages from his judgement.
99. The exercise of the right to marry gives rise to social, personal and legal consequences. It is subject to the national laws of the contracting States but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired.
100. It is true that the first sentence refers in express terms to the right of a man and woman to marry. The court is not persuaded at the date of this case that it can still be assumed that these terms must refer to a determination of gender by purely biological criteria. There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. The court has found above, under Article 8 of the Convention, that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual …
101. The right under Article 8 to respect for family life does not however subsume all the issues under Article 12, where conditions imposed by national laws are accorded a specific mention. The court has therefore decided whether the allocation of sex in national law to that registered at birth is a limitation impairing the very essence of the right to marry in this case. In that regard, it finds that it is artificial to assert that post-operative transsexuals have not been deprived of the right to marry as, according to law, they remain able to marry a person of their opposite sex. The applicant in this case lives as a woman, is in a relationship with a man, and would only wish to marry a man. She has no possibility of doing so. In the court’s view, she may therefore claim that the very essence of her right to marry has been infringed.’
104. The court concludes there has been a breach of Article 12 of the Convention in the present case.’
62. I agree with the analysis of Ms. Mountfield. There are clear limitations to the ‘living instrument’ doctrine and it cannot be applied to bring within the scope of the Convention issues which are plainly outside its contemplation. As stated by ECTHR in Johnston & Ors. v. Ireland  9 E.H.R.R. 203 at para. 53:
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:
Likewise, I cannot see that Article 14 can be relied on by the plaintiffs in the circumstances of these proceedings. The issue of Article 14 was also considered by Potter J. in the Wilkinson and Kitzenger case. He considered whether there was a justification for the distinction made between the opposite sex couple and the same sex couple in terms of the right to marry. At the heart of that case was the issue as to whether or not the Civil Partnership Act had downgraded the status of same sex couples compared to that of marriage. He noted as follows:
118. It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit … in which both maternal and paternal influences are available in respect of their nurture and upbringing.
119. The belief that this form of relationship is the one which best encourages stability in a well-regulated society is not a disreputable or outmoded notion based upon ideas of exclusivity, marginalisation, disapproval or discrimination against homosexuals or any other persons who by reason of their sexual orientation or for other reasons prefer to form a same sex union.
120. If marriage is by longstanding definition and acceptance, a formal relationship between a man and a woman, primarily (though not exclusively) with the aim of producing and rearing children as I have described it and if that is the institution contemplated and safeguarded by Article 12 then to accord a same sex relationship the title and status of marriage would be to fly in the face of the convention as well as to fail to recognise physical reality.”
I have touched very briefly in the last paragraph on the fact that civil partnership legislation is not available in this jurisdiction. 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.