First Round Win for Irish Lesbians

High Court rules couple can proceed in their claim to have Canadian marriage recognized

A judge in Ireland has ruled that an Irish lesbian couple who married last year in British Columbia, Canada, may sue their government for legal recognition of their marriage in Ireland.

According to online news reports from Europe, this may be the first case in which courts ruling under European law will consider the status of Canadian same-sex marriages.

Ruling from the bench on November 9, Irish High Court Justice Liam McKechnie said that the arguments presented to him by the couple’s lawyers, Gerard Hogan and Ivana Bacik, were sufficient to get past the first hurdle and schedule a full hearing before the court. This initial ruling is part of a process to screen out frivolous claims. McKechnie emphasized that his decision was not a final ruling on the merits of the claim.

Katherine Zappone and Ann Louise Gilligan have lived together as a couple for 23 years. Gilligan, a philosophy scholar, and Zappone, a public policy consultant who serves as a member of Ireland’s Human Rights Commission, decided to get married as soon as the opportunity arose. They held a ceremony in Vancouver, British Columbia, on September 13, 2003, just a few months after the British Columbia Court of Appeals required the province to issue marriage licenses to same-sex partners in a ruling based on the Canadian Charter of Rights and Freedoms.

When the couple returned to Ireland, they first sought to have their foreign marriage confirmed by the General Register Office, but were told that the Office does not confirm foreign marriages. The issue whether one country will recognize marriages contracted in another normally arises in the natural course of daily living when marital status becomes relevant for a specific purpose.

For Zappone and Gilligan, this came when they wanted to be treated as a married couple for tax purposes. They wrote to the Irish Revenue Agency on April 26, enclosing a copy of their Canadian marriage certificate and an affidavit from a Canadian lawyer attesting to the lawfulness of their marriage, but the agency responded that it would not allow them to claim a married tax status. The Irish tax law uses the terms “husband” and “wife” to describe the participants in a lawful marriage, but does not define those terms. The agency rested its case on the definitions of “husband” and “wife” in the Oxford English Dictionary, insisting that only married couples that include one man could be recognized.

The couple’s claim before McKechnie was that the tax agency’s refusal to recognize their married status is unlawful discrimination, in violation of the Irish constitution, the European Charter and the European Convention on Human Rights. So far, none of those documents has been interpreted to require either Ireland or member nations of the European Union to allow same-sex marriages. This case is framed somewhat differently from a direct frontal assault on the question, since the issue is confined to whether Ireland must recognize a lawful same-sex marriage contracted in Canada.

There is currently considerable debate within the European Union over whether member nations must recognize same-sex marriages contracted in the Netherlands or Belgium, the only member nations that now authorize same-sex marriages, and there is even controversy over recognition of less comprehensive forms of legal protection given to same-sex and unmarried opposite-sex partners by other member nations, such as the registered partnerships in the Scandinavian nations and Germany or the civil solidarity pacts available in France. The Spanish government is also expected to take final steps to authorize same-sex marriage in some form next year, further complicating the questions facing the European Union.

The European Convention on Human Rights guarantees the right of men and women to marry, but it is uncertain whether the European Human Rights Court would broadly construe that requirement to extend to same-sex couples. In recent litigation, however, the Court found that Britain was violating its convention obligations by refusing to allow transsexuals to marry in their acquired sex, and the court has gradually expanded its reading of the Convention to reflect social developments in the member countries.

The European Court is currently considering litigation over same-sex marriage brought by a male couple from Austria.

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