When, in 2003 my life partner, Anne Louise Gilligan, and I understood that in the eyes of Irish law we were considered total strangers should one of us die, I was stunned. It seems utterly unethical to me and so contrary to basic principles of human rights, that because of a specific personal characteristic – sexual identity – our citizenship rights should be curtailed.
I find it quite amazing that now, in 2014, we are faced with a situation where a lesbian and gay minority must ask the heterosexual majority through a referendum to grant us the human right to marry. Government should display leadership on this issue, reflect the tangible evolution in social consensus, and simply legislate for marriage equality now.
Going to law
Ann Louise and I married in Canada in September 2003, and on returning home asked the Registrar General to recognise our marriage, in the same way that all couples who marry outside of Ireland must. We were graciously refused, and legal proceedings were initiated.
By February 2004 a new Civil Registration Bill, largely concerned with who officiates and where a marriage can be carried out, had virtually finished its lengthy course through the Dail. At the final stage (generally just an administrative stage), just a day before its enactment into law, a particularly serious, but at the time mostly over-looked ‘clarification’ was inserted - marriage in Ireland can only refer to men and women marrying each other.
And surprising as it may be to read, this amendment was the first time and the only place in the entire Irish statute book where marriage was explicitly stated as being between a man and a woman. Presumably the lawyers in the Attorney General’s office, perhaps responding to developments in other European countries, saw that this particular elucidation was necessary to make.
But it’s almost exactly ten years to the day since that 2004 Act, and Ann-Louise and I are still asking the state to recognise our marriage, and thousands of Irish citizens march every year for the right to marry.
Judicial deference to legislation
In 2006, when our case Zappone & Gilligan v. Revenue Commissioners reached hearing, High Court Justice Dunne deferred to that 2004 Act as part of her rationale in refusing our claim for recognition. We had argued that the Irish Constitution is a living document – one that responds to its times rather than fossilising the conceptions of the original 1930s authors – and as such, it would only be justice that our twenty first century marriage be regarded as equal to that of the many heterosexual couples in Ireland.
However, Justice Dunne felt that she could not recognize a constitutional right to marry in our case, but rather she was dealing with the traditional concept of marriage that was well established in Irish law since the founding of the State. She spoke of how that definition “has always been understood” to mean “opposite” sex marriage. She was not convinced that its meaning needed to be reviewed in light of prevailing standards. And interestingly, a primary indicator she relied on to determine the “prevailing idea” of marriage was that it was defined in the 2004 Act.
Instantly after her ruling, the political establishment here framed Justice Dunne’s decision as a constitutional ban on the marriage of same sex individuals, and proceeded to employ the resources of the state in perpetuating that questionable interpretation. I have argued for a long time that there are differing legal views on what vehicle the government should use to activate change in this area. And the referendum is not, by any measure, the appropriate one for determining human rights. Legislation is.
Legislate on marriage equality now
In her ruling, Justice Dunne recognised that tradition evolves, and that although she did not think the meaning of the word ‘marriage’ had changed since 1937, it does have the potential to be “updated” as she put it. She too described the Constitution as “a living instrument” that should be interpreted “in the light of prevailing ideas and concepts”. But significantly, she advised that “[u]ltimately, it is for the legislature to determine the extent to which such changes should be made”.
It is already within the gift of Irish parliamentarians to reflect changing consensus by legislating, as the Constitution neither guarantees nor precludes marriage for same sex couples. Numerous lawyers and academics concur that the pathway of a referendum is completely unnecessary and a simple legislative act is what is required.
In 2006, following Justice Dunne’s ruling, Minister Lenihan spoke about his fears of the potential divisiveness of a marriage referendum. It is most interesting to reflect on what has changed in Irish society when we see the Constitutional Convention overwhelmingly support marriage equality. Since Justice Dunne’s judgment there has been so much movement and evolution on this issue.
It seems to me, therefore, that the “prevailing idea” on marriage equality is now solidly in place. We need to reconsider the referendum option now, as there is still plenty of time. We need to talk about how exactly the legislation should work, its scope and implications. We could legislate now.
Dr. Katherine Zappone is an Independent Senator, nominated
