The Ireland High Court yesterday rejected a lesbian couple's demand to have their Canadian "marriage" recognized in Ireland, in a landmark ruling closely watched by both sides of the international marriage debate.
Justice Elizabeth Dunne decided against the claim of Dr. Katherine Zappone and Dr. Anne Louise Gilligan, who had argued that the State and the Revenue Commissioners had violated their constitutional rights by refusing to assess them for taxes as a married couple, the Irish Times reported yesterday.
"Marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex," Justice Dunne wrote in her lengthy ruling.
"Having regard to the clear understanding of the meaning of marriage as set out in the numerous authorities opened to the Court from this jurisdiction and elsewhere, I do not see how marriage can be redefined by the Court to encompass same sex marriage."
Dr. Zappone, a public policy research consultant member of the Human Rights Commission, and Dr. Gilligan, who lectures at St. Patrick's College in Dublin, are homosexual activists who have been pursuing a change in Ireland's marriage laws that would permit homosexual couples to legally marry.
When Canada passed homosexual marriage legislation in 2003, the pair traveled to Vancouver, B.C. in September 2003 to "marry," and then used their Canadian "marriage" to attempt to force recognition by the Irish government.
Justice Dunne rejected the couple's argument that international acceptance of homosexual "marriage" was reason enough for re-evaluation of Irish law.
"The Plaintiffs referred frequently in the course of this case to the 'changing consensus' but I have to say the there is little evidence of that," she wrote. "The consensus around the world does not support a widespread move towards same sex marriage. There has been some limited support for the concept of same sex marriage as in Canada, Massachusetts and South Africa together with…three European countries…but, in truth, it is difficult to see that as a consensus, changing or otherwise."
In her 138-page ruling, Justice Dunne expressed concern about the effect of same-sex marriage on children, saying the lack of conclusive research into the results of homosexual parenting made it necessary to reserve judgment on the issue.
"[T]here is simply not enough evidence from the research done to date that could allow firm conclusions to be drawn as to the consequences of same sex marriage particularly in the area of the welfare of children."
The United States-based Institute for Marriage and Public Policy commented on the Irish court decision saying:
"Of particular interest may be the court's discussion about the evidence purporting to show no difference between children raised by same-sex couples and those raised by married couples. The judge accepted testimony about the methodological shortcomings of available evidence and said: ‘It also seems to me having regard to the criticism of the methodology used in the majority of the studies conducted to date that until such time as there are more longitudinal studies involving much larger samples that it will be difficult to reach firm conclusions on this topic.'
"The court concluded that the Irish Constitution's explicit reference to a constitutional right of opposite-sex couples to marry justified the legal distinction between same- and opposite-sex couples in the marriage law. The court further noted, however, that the marriage law was further justified by concerns with the 'welfare of children' since in the absence of good research, 'the State is entitled to adopt a cautious approach to changing the capacity to marry'."
Justice Dunne said the decision to grant legal recognition to same-sex couples apart from marriage should be up to the legislature, not the courts.
Currently in Ireland, legislation has been proposed that would permit homosexual couples to enter in to civil unions with some of the legal benefits given to married heterosexual couples.