Updated 5:30pm to add response from GLEN.

Senator Katherine Zappone and Dr Ann Louise Gilligan, who were lawfully married in Canada, will be issuing a fresh legal challenge in their fight to be married under Irish law. The couple’s appeal in their current case had been due to take place on 19th June next.

Fresh proceedings will be issued in the High Court in order to challenge – among other issues – the constitutionality of the Civil Registration Act 2004 – which marked the first time marriage was defined in Irish statute as being between a man and a woman – and the Civil Partnership Act – which prohibits people who have registered a civil partnership from marrying.

The Irish Constitution does not currently include a definition of marriage, but does include a commitment to equality for all citizens.

Senator Zappone said:

It became clear to us that, even if we succeeded with our original case, the provisions within the Civil Registration Act and the Civil Partnership Act would remain. So it became imperative to shelve our Supreme Court appeal and proceed to challenge this Act before the High Court.

The main point of the original case was the issue of whether the right to marry under the Irish Constitution extends to people of the same sex.

The new challenge will be heard in the High Court.

Last October, Senator Zappone and Dr Gilligan had asked the Supreme Court to allow a challenge to the Civil Registration Act be formally included as part of their appeal. That Act came into law after their initial case began. The Supreme Court refused the request, however, because full arguments relating to that legislation hadn’t been properly included in the initial hearing of the case, nor properly addressed by the High Court judge in her ruling.

Marriage Equality welcomed the decision by Senator Zappone and Dr Gilligan.

Director of Marriage Equality Moninne Griffith said:

We are happy to hear of Senator Zappone and Dr Gilligan’s decision. This new case will focus on the provisions in both Acts which prohibit same sex couples from marrying in Ireland, even if they are legally married in another jurisdiction. Their original case was in the High Court in 2006, and so much has changed in 6 years: Civil Partnership was introduced last year, public support has risen from 56% in 2008 to 73% earlier this year, and the government has committed to looking at the issue of marriage equality in the upcoming Constitutional Convention.

We’ve seen important developments overseas as well. More countries have allowed same-sex couples to marry, the Oxford English Dictionary now includes same-sex couples in its definition of “marriage”, and world leaders including David Cameron, Francois Hollande and Barack Obama have voiced their support for marriage equality.

Other developments in the US see the challenge to the ban on marriage equality in California now making its way to the United States Supreme Court.

Marriage Equality’s 2011 report Missing Pieces found over 160 differences between Civil Partnership and civil marriage, including issues around immigration, finance and family rights. Issues around family rights remain of particular concern to equality groups.

Ms Griffith added:

Irish people understand that the issue of marriage equality is about Irish values – equality and protecting our families – the people we love. This year, 73% of people said they believe marriage equality should be enshrined in the Irish Constitution. That is a clear indication that as a country we are ready to fulfil our Constitutional commitment to equality for all. We are therefore calling on government to begin work on the Constitutional Convention as soon as soon as possible and to prioritise dealing with the issue of marriage equality therein. This is a key opportunity for the Government to listen to public support and legislate for equality, rather than having the issue decided in the courts.

Responding to the news of the new court case, Kieran Rose, Chair of GLEN, stated:

[C]ivil marriage should be open to all citizens, including lesbians and gay men, as a matter of equal citizenship in a democratic Republic. Civil marriage would provide Constitutional equality with opposite-sex couples, and would underpin a wider equality for lesbian and gay people.

The Constitution and its provisions relating to civil marriage have been interpreted by the courts to date as excluding lesbian and gay couples from the right to marry. In 2010, all Parties in the Oireachtas voted for a model of civil partnership as close to civil marriage as was possible based on their understanding of the Constitutional barriers.

Since then, civil partnership has had a transformative social effect, with over 500 civil partnerships taking place in 2011 across every county in Ireland. There is now a growing political and public consensus for civil marriage including the latest opinion poll showing that 73% of Irish voters support civil marriage for same sex-couples.

He continued:

Civil marriage, building on the comprehensive civil partnership legislation, is the next incremental step in achieving equality for lesbian and gay couples. While civil partnership provides legal protections equal to civil marriage in a wide range of areas, including in social welfare, taxation, inheritance and immigration, civil marriage is the only option that would provide for full Constitutional equality with opposite-sex couples.

The forthcoming Constitutional Convention provides a further opportunity to tease out any issues and to further build a solid consensus for civil marriage for same-sex couples.

The Government can introduce the necessary legislation in advance of the Constitutional Convention and quickly bring much needed protection to lesbian and gay headed families.