In a further post in Human Rights in Ireland, Fiona de Londras points out that the Irish Constitutional Convention ought to have completed its work before the Irish Supreme Court hands down its judgment in the appeal from the High Court decision in Zappone & Anor v Revenue Commissioners & Ors  IEHC 404 (14 December 2006);  2 IR 417.
Katherine Zappone and Anne Louise Gilligan are Irish citizens who have lived together since their relationship began in 1981 and have been domiciled in Ireland since 1983. In September 2003 they married one another in Vancouver, British Columbia, where same-sex marriage has legal recognition. One of the issues in the case relates to the validity of their marriage in Irish law. They also challenge the refusal of the Revenue Commissioners to allow them to claim tax allowances as a married couple under the Taxes Consolidation Acts. The High Court took the view that Bunreacht na hÉireann had always assumed marriage to be between a man and a woman and that the definitions used in the Civil Registration Act 2004 were an expression of current social attitudes – nor did the Constitution violate Ms Zappone’s and Ms Gilligan’s right to marry under Article 12 of the European Convention of Human Rights. At the time Ms Zappone and Ms Gilligan began their action there was no provision in Irish law for civil partnerships: the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 only came into force on 1 January 2011 – and s 5 (Recognition of registered foreign relationships) provides, in effect, for an overseas same-sex marriages to be recognised only as a civil partnership in Ireland.
The facts in Zappone are strikingly similar to those in Wilkinson v Kitzinger & Ors  EWHC 2022 (Fam) (31 July 2006), in which the petitioner, Susan Wilkinson, who had married Celia Kitzinger in British Columbia in August 2003, sought a declaration as to their marital status under s 55 of the Family Law Act 1986. Both parties were then, and remained, domiciled in England; and their marriage was recognised as a civil partnership only, under the terms of section 215 (Overseas relationships treated as civil partnerships: the general rule) of the Civil Partnership Act 2004. As to whether or not a refusal to recognise their marriage as a marriage contravened Article 8 ECHR (private and family life), the President of the Family Division, Sir Mark Potter, was of the opinion that
“Article 8 is about non-interference of the state with a person’s private life, family, and home. In certain situations it implies or imposes a requirement to take some positive steps, where to do so is a necessary inference from the duty to respect a protected area. However, any necessity to protect the private or family life of childless same-sex couples does not extend to recognising them as married. The obligation to respect private or family life is not apt to bring within the ambit of Article 8 all Government policy choices touching upon their status” (para 87).
As regards Article 12 (right to marry):
“Read in a straightforward manner it seems … clear that the wording of Article 12 refers to the right to ‘marry’ in the traditional sense (namely as a marriage between a man and a woman) according to the national laws governing the exercise of that right” (para 55).
The petition for a declaration was dismissed.
But to return to Ireland, since the Tánaiste declared his support for equal marriage last week, two further ministers – Alan Shatter, the Minister for Justice and Equality and Minister for Defence, and Leo Varadkar, the Minister for Transport, Tourism and Sport – have done likewise. The Minister for Education and Skills, Ruari Quinn, has also come out in support of the change but suggests that constitutional amendment would be required. But Fiona de Londras is not convinced, since
“the Constitution does not define marriage, but marriage has been defined in the context of constitutional cases as being between a man and a woman. However, whether it is exclusively between a man and a woman as a constitutional matter is not definitively known and will not be until we get the Supreme Court judgment in Zappone”
– hence the desirablilty of the Constitutional Convention not coming to a conclusion that might be premature. But do read her full post for yourself.