Friday, May 16, 2008

California Dreamin'....What the Californian Decision Might Mean in Ireland

I wanted to add an Irish perspective to Kathleen’s post on the In re Marriage Cases decision of the California Supreme Court yesterday. In many ways the constitutional provisions here in Ireland are similar to those with which the Supreme Court was dealing yesterday – a right to marriage and a right to equality (or ‘equal protection’ in US parlance). Unlike in California we currently have no statutory or other framework for same-sex couples in Ireland. Opposite-sex couples may marry, and cohabiting opposite-sex couples qualify for various statutory protections (although not all) if they “live as husband and wife”. Same sex couples, on the other hand, enjoy almost no protections in the statutory code. Thus in Ireland there is essentially a ‘four tier’ system of family form – marriage, opposite-sex cohabiting couples, same-sex cohabiting couples, ‘others’ (siblings, grandparents caring for children etc…).
The Irish government has committed to introducing some kind of framework for same-sex couples, but refuses to expand marriage to include same sex couples. This is based on the Attorney General’s advice that this would be unconstitutional, although the Supreme Court has not yet decided a case in which same-sex marriage was at issue. The Irish High Court has refused to recognize the Canadian marriage of Katherine Zappone and Anne Louise Gilligan for tax reasons, but that case is on appeal to the Supreme Court [although it’s likely to another 2 years or thereabouts until it’s heard]. So we are in a limbo at the moment – a bill for civil unions is being prepared. We are told that these unions will generally be marriage-like but there will be no provision for adoption as a couple or for second-parent adoption. In addition, families formed under ‘civil unions’ would not enjoy the constitutional protections of families formed by means of ‘marriage’.
Thus the California decision is important for us here, I think at least, because it demonstrates how pre-existing constitutional standards on equality and marriage are open to an interpretation that allows (or, indeed, requires) openness in civil marriage. Whether the Irish government will change its position is, however, quite doubtful.
Most importantly for today, however, heartfelt congratulations to all Californians – hopefully the decision will not only bring happiness to those directly affected there (at least as long as it escapes constitutional amendment…) but will also help those of us with no access to a legal framework for our families to achieve marriage equality together with the introduction of meaningful ‘partnership’ laws for those who do not wish to marry. Congratulations!!

Picture: Dublin International Pride, 2007 (c) Fiona de Londras

1 comment:

Diane Marie Amann said...

Thanks to Fiona and Kate for excellent posts!
Also worth a look are discussions today at Slate -- in particular, Kenji Yoshino's column about the legal significance of the decision (; Dahlia Lithwick's about "activist judges" (; Emily Bazelon's on what's next (; and the blog thread at Convictions (