A lesbian couple are to appeal a High Court decision which said their Canadian marriage could not be recognised in Ireland.
Last week, Ms Justice Elizabeth Dunne dismissed the case of Katherine Zappone and Ann Louise Gilligan claiming that marriage could only be defined between members of the opposite sex, but the couple will now take their case to Ireland’s Supreme Court.
It is a similar ruling to that of Celia Kitzinger and Sue Wilkinson who were told by the High Court in London that their Canadian marriage could not be recognised in the UK.
However, in this case, the State is not seeking any damages from the claimants, this had hindered an appeal from Ms Kitzinger and Ms Wilkinson.
In a landmark case last October, the High Court in Dublin heard arguments from Katherine Zappone and Ann Louise Gilligan claiming discriminating against homosexuality can lead to clinical depression and that the current concept of marriage is outdated.
The judge dismissed the case but did recognise that same sex couples may face difficulties because of this, but said legislation should be introduced to amend that.
The couple argued that failing to recognise their Canadian marriage, and in failing to apply the tax law provisions relating to married couples to them as a married couple, the State and the Revenue Commissioners have acted unlawfully, in breach of their constitutional rights to equality, to marriage, to property rights and family rights and in breach of their rights to privacy, marriage and non-discrimination under the European Convention on Human Rights.
However, lawyers for the State have insisted the pair have no right to marry under the Constitution because marriage is defined as between a man and a woman.
The couple’s lawyer, Gerard Hogan, argued that the Irish Constitution, which was made in 1937, is outdated and out of context because homosexuality is now better understood, he told the court, “If there had been a law in 1937 which had prevented people from marrying on an irrational basis, such as having red hair, being left handed or wearing spectacles, even if it was the view of the majority, that law would undoubtedly have been found unconstitutional.”
Mr Hogan also said that the vindication of the right to marry and human rights had nothing to do with a consensual argument, a point which had been forwarded by Counsel for the State when it said that the judiciary could not make a decision about a fundamental institution such as marriage without it going to the people.
He rejected the separation of powers argument put forward by Counsel for the State referring to over 90 instances where statutes had been declared unconstitutional by the Courts. The courts, he said, were not concerned with majority attitudes, they were concerned with vindicating fundamental rights.
Last month, Israel’s High Court of Justice this morning ruled that gay couples legally wedded abroad can be registered as married in the population registry.