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Here in Ireland, we’re always told that the Constitution is the one thing that prevents us being treated equally by the law in terms of marriage. Last month, I rambled on about the constitution itself. Now, let’s see how the courts have interpreted the constitution.

(And let’s not forget that it is the role of the courts – and not parish-pump politicians or self-appointed moral custodians – whose job it is to interpret the Constitution and the laws.)

Two recent publications by the Law Reform Commission succinctly sum up how courts regard marriage under Article 41 of the Constitution: the first is the Consultation Paper on the Rights and Duties of Cohabitees from 2004; and the second is the Report on the Rights and Duties of Cohabitants from 2006.

The Consultation Paper sets out the most important court judgments in relation to Article 41. Now, the Law Reform Commission isn’t some sort of bastion of liberal, do-gooder hippies. Its publications are sober, factual, well-reasoned documents. One of its current Commissioners is a former judge of the Irish Supreme Court, Mrs Justice Catherine McGuiness (whom I lurrve, by the way).

Anyway, here is that Paper’s conclusion:

1.17 The Commission is of the view that Article 41 does not prevent the Oireachtas legislating in respect of cohabitees, so long as the legislation does not grant cohabitees more extensive rights than those enjoyed by married couples.

And I think we can all see the sense in that. Not only is that what the case law implies, it’s arguably reasonable to think that non-married couples aren’t treated more preferably than married couples. Basically, that is all that is required, according to the Law Reform Commission.

Conversely, then, treating same-sex couples equally in a civil marriage would not constitute an “attack” on marriage, either in the eyes of the law, or by simple logic.

The Oireachtas attempted to put the kibosh on this marriage equality lark, however, back in 2004: the then Minister for Social and Family Affairs, our current Tánaiste, Mary Coughlan was responsible for inserting into legislation for the first time in Irish history a definition of marriage as being only between opposite-sex couples [section 2(2)(e)]. Until then the law was essentially court made. The law was approved by all but Sinn Féin TDs.

(This is the same Mary Coughlan who legislated to discriminate against same-sex couples in social welfare benefits. Notably, this was a few months after her then Department settled a legal challenge by a same-sex couple over discrimination in the Free Travel Pass scheme. You see, cleverly, Bertie Ahern’s government made sure to include in the 1990s equality Acts provisions which permit discrimination which is contained in statutes. Neat.)

Of course, judge Elizabeth Dunne in the High Court recently ruled against Katherine Zappone and Ann-Louise Gillgan in their attempt to have their Canadian marriage recognised for the purposes of taxation. The case is now the subject of an appeal to the Supreme Court of Ireland. (Interestingly, witness for the State, Prof Patricia Casey, never disclosed to the court or anyone else that she is a patron of the Iona Institute. The Iona Institute was ‘launched’ shortly after the High Court’s decision.)

Very recently, however, in April of this year, the High Court ruled that a lesbian couple and their child constituted a de facto family:

Mr Justice John Hedigan … found that where a lesbian couple live together in a long term committed relationship, they could be regarded as being a de facto family and enjoy family rights under Article 8 of the European Convention on Human Rights.

RTE also reported that:

The judge hearing the case has called on the Oireachtas to give urgent consideration to legislation to take account of the existence of same sex couples and securing their rights under the European Convention on Human Rights, particularly where such a couple wishes one of them to bear a child.

So, where to now?

Update (4th Oct 2008)
At the time of original publication, I could not locate the High Court’s judgement on www.courts.ie. Happily, I have since had luck: the case is McD v. L & Anor. [2008] IEHC 96

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