Katherine Zappone and Ann Louise Gilligan, Plaintiffs V. the Revenue

2 I.R. The Irish Reports 417 Katherine Zappone and Ann Louise Gilligan, Plaintiffs v. The Revenue Commissioners, Ireland and The At- torney General, Defendants and The Human Rights Commission, Notice Party [2006] IEHC 404, [2004 No. 19616 P] High Court 14th December, 2006 Constitution – Marriage – Right to marry – Same sex marriage – Capacity to marry – Validity of Canadian same sex marriage – Recognition of Canadian marriage – Restrictions on right to marry – Common law and statutory prohibition on same sex marriage – Breach of constitutional rights – Unenumerated rights – Discrimi- nation –– Invidious discrimination – Restriction based on gender or sexual orientation – Gender based discrimination – Justification – Legitimate purpose – Proportionality – Exigencies of common good – Civil Registration Act 2005 (No. 3), s. 2(2)(e) – Constitution of Ireland 1937, Articles 40, 41 and 43. Constitution – Interpretation – Meaning of “marriage” – Clear unambiguous language – Ordinary and natural meaning of words – Historical context – Intention of framers – Constitution as living instrument – Changing consensus. European Convention on Human Rights – Same sex marriage – Capacity to marry – Validity of Canadian same sex marriage – Recognition of Canadian marriage – Right to marry – Right to respect for private and family life – Discrimination – Restriction based on gender or sexual orientation – Proportionality – Margin of appreciation – European Convention on Human Rights Act 2003 (No. 20) – European Convention for the Protection of Human Rights and Fundamental Freedoms 1951, articles 8, 12 and 14. Taxation – Married couples – Tax benefits available to married couples – Tax treatment of heterosexual cohabiting couples – Same sex couples – Whether provisions relating to married couples also applied to same sex couples –– Taxes Con- solidation Act 1997 (No. 39), ss. 461, 1017 and 1019. The plaintiffs in this case had lived together as a cohabiting couple in a lesbian relationship since their relationship began in 1981. In 2003, the plaintiffs married one another in Canada where recognition has been given to same sex marriage. The plaintiffs sought confirmation from Oifig an Ard-Chláraitheora that their marriage was legally binding in Ireland. They were advised that the remit of the Registrar General did not extend to making a declaration on the validity of marriages that occurred outside the State and that such was a matter for the courts. The plaintiffs also forwarded their certificate of marriage to the first defendant to seek tax allowances as a married couple under the Taxes Consolidation Act 1997. The first defendant refused to grant the tax reliefs sought on the basis that the provisions relating to married couples related only to a husband and wife. The plaintiffs argued that the relevant tax legislation did not contain any definitions of the terms “married persons”, “spouses”, “husband” or “wife”. The plaintiffs 418 Zappone v. Revenue Commissioners [2008] H.C. further argued that there was no definition of married persons so as to exclude persons of the same sex. The first defendant interpreted the tax law to mean that the provisions relating to married couples related only to a husband and wife. The first defendant relied on the definitions of husband and wife contained in the Oxford English Diction- ary which defined a husband as a married man especially in relation to his wife and defined a wife as a married woman especially in relation to her husband. The plaintiffs sought and were granted leave to seek an order of certiorari of the decision of the first defendant refusing to grant them tax allowances as a married couple. The plaintiffs claimed that the defendants had subjected them to unjust and invidious discrimination and had acted in breach of their constitutional rights. They also relied on the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and pleaded that in failing to recognise their marriage and to apply the provisions of tax law relating to married persons to them as a married couple, the defendants had discriminated against them on the grounds of their gender and/or sexual orientation in breach of article 14 of the Convention and had violated their right to respect for their private and family life under article 8 of the Convention and their right to marry under article 12 of the Convention. Held by the High Court (Dunne J.), in dismissing the claim, 1, that the right to marry contained in the Constitution was not an express right but was clearly implicit from the terms of Article 41. The definition of marriage to date had always been understood as being opposite sex marriage. Marriage was understood under the Constitution to be confined to persons of the opposite sex and the court could not now redefine marriage to encompass same sex marriage. Murray v. Ireland [1985] I.R. 532; T.F. v. Ireland [1995] 1 I.R. 321; D.T. v. C.T. (Divorce: Ample resources) [2002] 3 I.R. 334 and Foy v. An tArd Chláraitheoir (Unreported, High Court, McKechnie J., 9th July, 2002) followed. Goodwin v. United Kingdom (2002) 35 E.H.R.R. 447 considered. 2. That the Constitution was a living instrument and must be interpreted in the light of prevailing ideas and concepts. Section 2(2)(e) of the Civil Registration Act 2004 set out what was previously the common law exclusion of same sex couples from the institution of marriage and this was an indication of the prevailing idea and concept of what marriage was and how it should be defined. The Act of 2004 was entitled to a presumption of constitutionality and was an expression of the prevailing view as to the basis for capacity to marry. McGee v. Attorney General [1974] I.R. 284 and Sinnott v. Minister for Education [2001] 2 I.R. 545 followed. 3. That the right to opposite sex marriage was derived from the Constitution and that was justification for any distinction between the position of the plaintiffs and married couples. The tax code was applied to the plaintiffs in the same way as it applied to cohabiting heterosexual couples. The plaintiffs were not in law treated any differ- ently from any other non-married heterosexual couples. Woo v. Lockyer and Others (Unreported, Court of Appeal for the State of Califor- nia, 5th October, 2006) considered. 4. That if there was, in fact, any form of discriminatory distinction between same sex couples and opposite sex couples by reason of the exclusion of same sex couples from the right to marry, then Article 41 in its clear terms as to guarding the family provided the necessary justification. A further ground of justification was the protection of the welfare of children. The State was entitled to adopt a cautious approach to 2 I.R. Zappone v. Revenue Commissioners 419 H.C. changing the capacity to marry albeit that there was no evidence of any adverse impact on the welfare of children. 5. That, having regard to all of the provisions of Articles 41 and 42 of the Consti- tution, the definition of marriage could not, having regard to the ordinary and natural meaning of the words used, relate to a same sex couple 6. That the legal provisions in relation to the right to marry and to capacity to marry in this jurisdiction were not incompatible with the provisions of the European Convention on Human Rights. There were clear limitations to the “living instrument” doctrine and it could not be applied to bring within the scope of the European Conven- tion on Human Rights issues which were plainly outside its contemplation. It was not possible to interpret or extend article 12 of the Convention so as to recognise an unqualified right of a man or a woman to marry a person of the same, as well as the opposite, sex. Johnston v. Ireland (1987) 9 E.H.R.R. 203 and Wilkinson and Kitzinger v. Attor- ney General [2006] EWHC 2002 (Fam), (Unreported, High Court, Potter P., 31st July, 2006) followed. Goodwin v. United Kingdom (2002) 35 E.H.R.R. 447 considered. 7. That article 8 of the European Convention on Human Rights did not avail the plaintiffs in the circumstances of this case. Article 8 did not impose on contracting states a positive obligation to establish for unmarried couples a status analogous to that of married couples. While the plaintiffs wished to marry they were legally incapable of doing so. Johnston v. Ireland (1987) 9 E.H.R.R. 203 and Wilkinson and Kitzinger v. Attor- ney General [2006] EWHC 2002 (Fam), (Unreported, High Court, Potter P., 31st July, 2006) followed. 8. That there was no violation of the plaintiffs’ rights under article 14 of the Euro- pean Convention on Human Rights. The lack of a civil partnership scheme in this jurisdiction did not bring into effect the provisions of article 14. Article 12 of the Convention stated expressly that the right to marry was “according to the national laws governing the exercise of this right”. Clearly, there was a wide margin of appreciation given to contracting states in this area and this area was one on which there was no consensus across Europe. Johnston v. Ireland (1987) 9 E.H.R.R. 203 followed and Wilkinson and Kitzinger v. Attorney General [2006] EWHC 2002 (Fam), (Unreported, High Court, Potter P., 31st July, 2006) considered. Obiter dictum: That people in the position of the plaintiffs, be they same sex couples or heterosexual couples, can suffer great difficulty or hardship in the event of the death or serious illness of their partners but it was for the legislature to determine the extent to which legislative changes should be introduced to ameliorate the situation of same sex couples and unmarried heterosexual couples. Cases mentioned in this report:- An Blascaod Mór Teo.

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