The fundamental right to marry must be "the right to marry the person you love" and the ban on same-sex marriages here breaches the essential dignity of persons as human beings, the High Court was told yesterday at the opening of a historic action by a lesbian couple.
Dr Katherine Zappone and Dr Ann Louise Gilligan have lived together since the 1980s and married in Canada in 2003.
The State's refusal to recognise their Canadian marriage or permit them to marry in Ireland had caused them personal distress as well as financial loss through the failure to treat them for tax purposes in the same way as a married couple, Michael Collins SC, said.
This case was not just about different financial treatment of same-sex couples but about the dignity of people and their personal right to marry the person of their choice, the person whom they love, he said.
The State gave the right to marry to convicted criminals, sex-abusers and people who had to be directed to pay maintenance to their children, but refused the same right to persons because of their gender and sexual orientation.
The court would have to determine the nature and essence of marriage, Mr Collins said. A "white dress and a bride cannot be regarded as the definitive determining factors".
"Why is it that marriage is a state that is desired and craved by people? It is more than a tax-planning exercise."
Marriage was "a public recognition of a very fundamental commitment people make to each other" and the respect owed by the State for that choice arose from the dignity of people as human beings.
It was "fundamentally wrong" to deny that right to a person because the person they had chosen and whom they loved was of the same sex. The right to marry "is part of the essence of what makes us human" and to deny that right to some people on the grounds of gender and sexual orientation was to deprive them of some part of their humanity.
It was "sterile" to say a homosexual person had the right to marry as long as it was to a member of the opposite sex.
Imagine, he added, if the reverse was the case and heterosexual persons could not marry a member of the opposite sex.
The State had failed in its defence to this action to articulate any clear justification for the ban on same-sex marriages, the refusal to recognise the couple's Canadian marriage or to treat them as a married couple for tax purposes, Mr Collins said.
There were only general references to "public policy considerations" and "common good".
A letter to the couple from the Revenue Commissioners, which perhaps was the closest outline yet of the State's defence, had stated that as the tax laws here referred to husband and wife and the Oxford English Dictionary defined those terms as a "married man" and "married woman", then the couple were not entitled to the same allowances as a married couple, Mr Collins said. This meant they were not entitled, for example, to exemption from inheritance tax in the event of the death of either, although a married couple had such exemption.
There were four possible justifications for the ban which may be advanced by the State, Mr Collins suggested. These were (1), the traditional understanding of marriage as between a heterosexual man and woman; (2), that children fared better in heterosexual marriages; (3) that an essential feature of marriage was the ability to procreate and same-sex couples could not do that without assistance, and (4) that a majority in society disapproved of homosexual unions and conduct.
None of these arguments, he contended, withstood scrutiny. The concept of marriage had altered over time, for example the concept of a lifelong union had altered with the introduction of divorce, he said.
Marriages between sterile couples or those who did not wish to have children were not prohibited and "mere unpopularity, distaste or disapproval" for same- sex marriages, even if this was a majority view, could never constitute a legitimate purpose for the ban.
Mr Collins was opening the action by Dr Zappone, a public policy consultant and member of the Human Rights Commission, and Dr Gilligan, an academic, against the State and the Revenue Commissioners with the Human Rights Commission as a notice party. The hearing before Ms Justice Elizabeth Dunne is expected to last several weeks.
The action, Mr Collins said, raised a point as to whether the right to marry under the Constitution and European Convention on Human Rights could be circumscribed to exclude persons of the same-sex.
The common law recognised marriage as between a man and a woman and the Civil Registration Act of 2004 prohibited same-sex marriages. The court would have to decide what is meant by the right to marry and the nature and essence of marriage itself.
The case being made was that there is a right to marry under the Constitution and Convention and, to give meaning to that right, it must encompass the right to marry the person you love, Mr Collins said.
While there was no absolute right to marry and the State was entitled to, for example, ban marriage to a child or between siblings, it was not entitled to ban marriage between consenting adults of the same-sex.
There could not be discrimination on the basis of gender or sexual orientation and all Dr Zappone and Dr Gilligan were seeking was equality and the same right to marry as everyone else.
The State's refusal to allow this marriage constituted discrimination on the grounds of both gender and sexual orientation and the onus was on the State to show there was a legitimate purpose for this prohibition.
Dr Zappone and Dr Gilligan were eminently suited to marriage, Mr Collins said. They met each other in 1980 while doing post-graduate work in Boston and had been living together as a cohabiting couple since 1981. They married in Canada in 2003. Both are Irish citizens.
Dr Zappone, a member of the Human Rights Commission and former chief executive of the National Women's Council, has an MA in business administration and a PhD, she has lectured in Trinity College Dublin and now works as a public policy consultant. Dr Gilligan is an academic based in St Patrick's College in Drumcondra, Dublin, the court heard.
