“He wrote the book on that!” – A phrase sometimes bandied around to convey someone’s great knowledge in a particular area.

Well, when it comes to Alan Shatter, however, it’s literally true. Our current Minister for Justice, Equality and Defence is one of the leading authorities in Ireland on family law, and the author of Shatter’s Family Law – a familiar core textbook for any student or practitioner of law. He knows the law relating to families and marriage back to front and inside out.

Minister Shatter will therefore be aware of the nature and origins of marriage.

Yes, I’ve prattled on before about the changing nature of marriage – through time and in its variations around the world – but I think it’s important to take a look at marriage in Ireland today, and trace its history. Just for the laugh, like.

So: marriage in Ireland today is defined in s.2 of the Civil Registration Act, 2004.

Now, stay with me on this. Section 2(2)(e) states:

For the purposes of this Act there is an impediment to a marriage if—

[…]

(e) both parties are of the same sex.

This was a legislative provision enacted in 2004. That’s 2004, a mere seven years ago. The blink of an eye in law-making terms.

It was enacted when Fianna Fáil and the [Green Party] Progressive Democrats were in government. (We don’t like them. And Fine Gael especially don’t like them.)

Previously, the definition of marriage in Ireland was determined by caselaw. That is, judge-made law.

That’s right! Not even Bunreacht na hÉireann – the Irish Constitution – explicitly defines marriage. Nope, it was all judges all along. And they, generally, followed this definition:

Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others.

Now, where on earth did they dream that up?

Why, it’s from a case called Hyde v Hyde. Now, that case is regarded as the leading case when it comes to modern (in the legal sense of modern, I should say) notions of marriage our system of law.

But what did the case involve?

The case was decided by the House of Lords in 1866 and concerned Mormons who had emigrated from the UK to Utah, and the decision centred on the question of whether polygamous marriage was legally valid in the UK.

(You may want to read that sentence one more time.)

So it’s completely relevant. To everything!

We’re talking 1866. Queen Victoria was still clinging to that throne like a good thing, despite being recently bereaved by the death of her beloved Albert. Perhaps she was consoled by the fact that India had come under her direct rule less than 10 years previously. Meanwhile, State-side, a young gurrier called Jesse James and his pals were about to commence a life of crime. And Ireland was still very much part of the United Kingdom under the Act of Union.

Ah yes, 1866. Those were some good times.

And polygamy. How could we forget polygamy? Of course, it’s important to bear polygamy in mind when we’re talking about Hyde v Hyde; the definition of marriage in the 21st century; and the campaign for marriage equality for same-sex couples.

But back to 1866:

This was a time when the very idea of human sexuality as we understand it probably didn’t exist, let alone sexual identity or notions of gay, lesbian, straight, and so on. (It wasn’t until the likes of Sigmund Freud and Magnus Hirschfeld came along at the turn of the 20th century with their wacky ideas – oh, those crazy Europeans! – that the concepts of sexuality as we would recognise them began to be formulated.)

Image via Wikipedia

Homosexual acts, certainly, were criminalised. (Although it has to be said that it wasn’t until Henry VIII that such acts were criminalised by the secular state in England. This occurred in 1533. The full title of Henry’s legislation is: An Acte for the punysshement of the vice of Buggerie. Before that, it was Ecclesiastic Courts which dealt with issues of “buggerie”. And afterwards, King Henry used his novel legal instrument against monks to prosecute and execute them, and to seize monastic lands and valuables. Ooh, he were a crafty one, that Henry.)

Queen Victoria – there she is again – updated the criminalisation of such acts during her reign, at least twice. You may recall the Offences against the Person Act, 1861 and the Criminal Law Amendment Act, 1885 from such landmark rulings as Dudgeon v The United Kingdom and Norris v Ireland. On point of fact, however, the 1861 Act removed the death penalty as the sentence to be imposed if found guilty. So that’s a plus from Her Maj.

So the ruling in Hyde v Hyde was handed down less than five years after the abolition of the death penalty for same-sex acts between men. That’s the context we’re talking about.

And get this: as of 1993, homosexual acts are no longer criminal offences in Ireland!

Image via Wikipedia

Yet, a slightly outmoded judicial ruling persists. Given the prevailing attitudes in 1866, however, it’s hardly surprising that Lord Penzance stated that marriage was between a man and a woman, is it? (In “Christendom”, remember.) It wouldn’t – nay, couldn’t – have possibly entered his honourable and learned brain to think otherwise. This was England in 1866, for goodness sake!

So, let’s skip forward in Ireland from 1866 to 1937: Under the 1937 Constitution, all legislation enacted by the Oireachtas enjoys the presumption of constitutionality. (Legislation which precedes that date, does not enjoy such a presumption. ’Cause Ireland’s independent now, don’t you see?) So the laws passed by independent Ireland trump all else.

Hyde v Hyde was a ruling, not legislation, but you might imagine a similar reasoning would apply to the rulings of independent Ireland’s courts. And, although Ireland’s common law tradition is based on that introduced by our former rulers across the Irish Sea, divergence does occur in the legal principles established by the Irish courts as compared with the UK.

So why not now, with marriage equality? Homosexual acts are no longer criminalised. People (usually) understand the nature of human relationships. Come on, Ireland, get with the programme!

Some whine about “constitutional propriety!” or some such (without further elaboration). But as I mentioned earlier, the constitution does not define marriage; caselaw and legislation do.

And who are our legislators? Only the elected representatives of the Irish people.

And what do the Irish people think about marriage equality? 78% support equality for same-sex couples, according to a Red C poll carried out in March 2011.

“Constitutional propriety!” Oh hush! Here’s the latest interpretation from the superior courts: the High Court in Zappone and Gilligan v The Revenue Commissioners bounced the issue of marriage equality back to the legislature. The judge stated:

Dr. Zappone [...] 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.

Incidentially, the Zappone case was instituted before the enactment of the 2004 legislation excluding same-sex couples, and the High Court’s ruling was issued in 2006.

“But the Constitution!” Okay, okay. Here’s what the Constitution says in relation to marriage under Article 41:

3. 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.

Article 41 of the Constitution then goes on to describe the circumstances where it is permissible for a marriage to be dissolved. Yes, “dissolved”. That is, divorce.

So then how exactly does allowing more people to marry constitute an attack on marriage? And I mean specifically – technically, legally, socially, logically – how? Not some generalised assertion of “It just is an attack, okay? I mean, gays: ew.”

Look at the absurdities to date:

(a) The Constitution permits the dissolution of marriage through divorce.

(b) The GRAG Report recommends requiring married couples to divorce in order to have a preferred gender recognised. I’ll say that again: requiring married couples to divorce. Even if they don’t want to. Even if they are happy together, have a home, have kids – whatever the circumstances. Mandatory divorce or no cookie.

Some may refer to High Court pronouncements on the definition of marriage, which essentially re-hash the Hyde v Hyde definition. (Including, in déja vu style, the case of B v R which involved what? Bigamy!) The Supreme Court has yet to rule on the matter when it comes to same-sex couples, however. Which is where the Zappone case comes into play. What might that Court rely on? Some of its own landmark rulings, perhaps?

For instance:

“According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”

- Walsh J. in McGee v The Attorney General (1974)

“[The preamble to the Constitution] makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes or develops and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.”

- O’Higgins C.J. in The State (Healy) v Donohue (1976)

“[The comments made by O'Higgins C.J. above] are particularly apposite with regard to the perception of the nature of the rights of parties to marriage and their relationship with one to another.”

and

“[I]n the interpretation of the Constitution regard must be had to the extent to which ideas and values prevailing at one period have been conditioned by the passage of time.”

- Murphy J. in TF v Ireland (1995)

Come on, Alan. You and I both know where this is headed. Between historic anachronisms, Constitutional developments, current public opinion, the ECHR, and the EU and its Charter (not to mention Brussels II bis), it’s inevitable: marriage equality is coming to Ireland. So why not spare everyone the time, energy and heartache and just legislate?

I also hear from the Law Reform Commission that the government is due to publish a Civil Registration (Amendment) Bill. Let me make it easy for you and draft the marriage equality provision:

Section 2(2)(e) of the Civil Registration Act 2004 is hereby deleted.

Ta-dah!

• Elsewhere in pursuit of equality: Zappone & Gilligan case in the Supreme Court – Fri, 21 Oct 2011 at 10:45am