Marriage Equality in I reland

1. Marriage Equality in Ireland Justine Quinn LL.B. (Dub), LL.M. (LSE), Attorney-at-Law (New York), Barrister at Law.

2. Why Marriage? • Constitutional Law • Common Law • 169 Statutory Differences • Travel (limited recognition of civil partnerships in other countries). 21 countries have different registered partnership schemes 11 have full civil marriage.

3. Civil Partnerships provide little protection for Children who have lesbian or gay parents • American Psychiatric Association and National Association of Social Workers – last have state, the children would benefit if their parents could marry. • What are the legal implications for children of preventing their parents from marrying?

4. Who wants to marry?

5. Marriage Equality in Ireland • Civil marriage for couples in same-sex relationships to be considered in upcoming Constitutional Convention. • Fresh proceedings have issued before the High Court in Zappone and Gilligan v. Ireland , Record No. 2012/6121P. • Zappone and Gilligan v. Revenue Commissioners [2008] 2 IR 417 Not clear from the decision whether or not legislation providing for recognition of marriages between same-sex couples would be unconstitutional.

6. Our Constitution • There is a constitutional right to marry. • No express constitutional ban. • A statutory impediment: • s. 2(2)(e) of the Civil Registration Act 2004 – there is an impediment to marriage if “both parties are of the same sex.” • S. 5(1) Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. - foreign marriages between couples of the same-sex are recognized as civil partnerships.

7. 3 Arguments • There is a constitutional right to marry. • Marriage has changed over time (the consensus has changed) • Nothing in the plain language of the constitution prohibits it.

8. 1. The right to marry • McGee v. Attorney General[1974] IR 284, per Fitzgerald C.J.- a right recognized in ‘most, if not all, civilized countries for many centuries’ (Article 40.3). • Zappone and Gilligan v. Ireland [2008] 2 IR 417, 505 (HC, Justice Dunne).‘the right to marry contained in the Constitution…is clearly implicit from the terms of Article 41.’

9. 2. 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.

10. Bowers v. Hardwicke Bowers v. Hardwick (1986) (Justice Scalia). If moral disapprobation is not enough: “...what justification could there possibly be for denying the benefits of marriage to homosexuals…Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”

11. 3. Zappone & Gilligan v. Revenue Commissioners,[2008] 2 IR 417,505(HC,Justice Dunne). • “I accept that the Constitution is a living instrument…” suggests this only applies to unenumerated rights, not to redefining a right “which is implicit.” • “There has been some limited support for the concept of same sex marriage in Canada, Massachusetts and South Africa together with the three European countries previously referred to but, in truth it is difficult to see a consensus, changing or otherwise.”

12. Zappone & Gilligan v. Revenue Commissioners, [2008] 2 IR 417,505(HC,Justice Dunne). “In this jurisdiction, as recently as 2004, s. 2(2)(e) of the Civil Registration Act was enacted…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.”

13. Hyde v. Hyde and Woodmansee[L.R.] (1866) 1 P. & D. 130 per Lord Penzance. What, then, is the nature of this institution as understood in Christendom? Its incidents vary in different countries, but what are its essential elements and invariable features? …however varied in different countries in itsminor incidents). I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

14. What about Western Democracies today? • 385.5 million people on four continents live in jurisdictions where marriages between same sex couples are recognized. • Argentina, Belgium, Canada, Netherlands, Iceland, Norway, Portugal, South Africa, Spain, Sweden, Denmark. Next year, France and New Zealand. By 2014 Scotland and England and Wales in 2015.

15. The Definition of Marriage • Oxford English Dictionary • The formal union of a man and a woman, typically as recognized by law, by which they become husband and wife. • (in some jurisdictions) a union between partners of the same sex. • Merriam Webster (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage <same-sex marriage>

16. Has the Consensus changed? • Political support for civil marriage for couples in same-sex relationships from all major parties (FG, L, FF, G, SF). • 73% of the public support allowing couples in same-sex relationships access to civil marriage marry (Red C Poll February 2012) and Sunday Times/Red C Poll 2011). In 2009 that number was 63% in 2009 and 58% in 2008. • Plenty of evidence of consensus today.