Same-Sex Marriage

• Date: 01 January 2012

Same-Sex Marriage

EM ILY G EANEY *

Introduction

In Ireland, marriage is exclusively a heterosexual union. Section 2(2)(e) of

the Civil Registration Act 2004 (“the 2004 Act”) makes it clear that parties

to a marriage must be of the opposite sex. This is the first legislative

statement in this jurisdiction forbidding same-sex marriage. However the

legislation merely restates the position taken by the common law.1Not long

after the 2004 Act was signed, the constitutional right to marry was inter -

preted as a right to marry a person of the opposite sex only.2In the High

Court’s 2006 decision in Zappone & Gilligan v Revenue Commissioners &

Ors (Zappone), the Court refused to recognise a Canadian same-sex

marriage as a valid marriage in Ireland, confirming that marriage is a union

between one man and one woman.3This article will focus mainly on the

arguments made in Zappone.

Numerous justifications for the ban on same-sex marriage were put

forward in Zappone, and this article will analyse the substance of these

arguments.4The arguments put forward were that the state has an interest

in procreation, a function that same-sex couples cannot fulfil naturally; that

same-sex couples do not fit into the traditional definition of marriage; that

the majority of the public do not agree with homosexuality and the state has

an interest in upholding the beliefs of the public; and that it is in the interest

* BCL (Honours) ( University Coll ege Cork), LLM (University Co llege Cork). This

article, although somewhat amended, forms part of the author’s thesis entitled “Joint

Adoption f or Same-sex Couples : A Case for Reform” which w as completed at the

University C ollege Cork under the supervision of Dr A isling Parkes. All er rors and

omissions however remain the author’s own.

1De Londras, “The Law That Dare Now Speak Its Name?” (2006) 9(2) I.J.F.L. 20, p.21

2The right to marry was recognise d as an unenumerated right in Donovan v Minister

for Justice [1951] 85 I.L.T.R. 134; Ryan v AG [1965] I.R. 294

3Zappone & Gilligan v Revenue Commissioner & Ors [2006] I.E.H.C. 404 (hereinafter

“Zappone”)

4The plaintiffs in Zappone, ibid, paras 76 –79 also made an equality argument unde r

Article 40.1, Bunreacht n a hÉireann, 1937, that same-sex couples are discri minated

against on the grounds of s exual orientation or gender. Dunne J held there was n o

discrimination, but even if there was discrimination it did not offend Article 40.1 as it

could be justified by reference to Article 41.3.1, which requires the State to guard the

institution of marriage with special care and to protect it against attack, p aras

247–248. As very little time or s pace was dedica ted to the equality argument it is

proposed not to deal with Article 40.1 in this Article. In any case, equality arguments

are rarely successful. The equality argument is outside the scope of the current article.

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of children not to be raised by a same-sex couple, which would be permitted

if such couples were allowed to marry.5Each of these arguments will be

discussed in turn. Next the interpretation of the constitutional right to

marry will be considered. It will be argued that the as the Constitution is a

“living document”, the definition of the right to marry should not be frozen

in time and should be reinterpreted in accordance with the views of

contemporary society. While the High Court in Zappone disagreed with this

argument, it will be argued that this was incorrect. The Civil Partnership

and Certain Rights and Obligations of Cohabitants Act 2010 (2010 No. 24)

will be considered as an alternative to marriage for same-sex couples.

Finally, the position under the European Convention of Human Rights

1950 will be examined.

Protecting State Interests

The right to marry is not an unlimited right and the Courts have held that

the State may legitimately limit this right.6The plaintiffs in Zappone

suggested four possible justifications that the State might rely on to defend

the ban on same-sex marriage7:

1. Marriage has to do with procreation and same-sex couples cannot

procreate naturally;

2. The welfare of potential children of a marriage is best served in a

heterosexual family relationship;

3. Marriage is defined as something between men and women and so by

definition excludes same-sex couples.;

4. It is assumed that the majority of society disapproves of homosexual

conduct and relationships either on moral, religious or philosophical

grounds, and so the State is acting on foot of that presumed majority

view.

However, it is dealt with in some detail in Ennis, “Marriage: Redefined and Realigned

with Bunreacht na hÉireann” (2010) 1(2) I.J.L.S. 29.

5Zappone, supra note 3, paras 76–79

6Foy v An tArd Chlaraitheoir et al [2002] I.E.H.C. 116, para.175

7Zappone, supra note 3, paras 76–79; Friedman identifies theses state interests as:

1. encouraging procreation;

2. protecting children;

3. discouraging illegal homosexual activity;

4. reducing incidences of homosexuality;

5. promoting the dominant culture’s norms supporting the traditional family.

She ul timately determines that none of these interests are sufficient to justify the

requirement that parties to a marriage must be of the opposite sex, Friedman, “The

Necessity for State Recognition of Same-sex Marriage: Constitutional Requirements

and Evolving Notions of Family” (1987) 3 Berkeley Women’s L.J. 1 34, pp.161–9,

noted in Treuthart, Adoptin g a More Realistic Definition of ‘Family ’ (1990–1) 26

Gonz. L. Rev. 91, p.99 fn.24; Ennis, supra note 4

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