Same-sex marriage and the Irish Constitution

Author: O'Sullivan, Aisling

Source: The International Journal of Human Rights, Volume 13, Numbers 2-3, April 2009 , pp. 477-492(16)

Publisher: Routledge, part of the Taylor & Francis Group

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Abstract:

This paper examines the recent Irish High Court case of Zappone and Gilligan v. Revenue Commissioners and Others, a challenge to the constitutionality of the state's interpretation of the Irish Tax Code vis-a-vis the foreign marriage of a same-sex couple and their right to marry each other under Irish law. The right to marry and the nature of marriage are undefined in the Irish Constitution. Thus, a progressive interpretation may take into account contemporary knowledge of sexuality and sexual orientation and norms of equality and non-discrimination. This paper also discusses the 'living document' approach to constitutional interpretation and argues that the High Court misapplied the methodology of Supreme Court Justice Murray in Sinnott v. Minister for Education, a methodology which may offer the means to interpret the Irish Constitution as protecting the right to marry another person of the same sex.

Keywords: constitutional interpretation; right to marry; same-sex marriage; Ireland

Document Type: Research article

DOI: http://dx.doi.org/10.1080/13642980902758242

Affiliations: 1: Irish Centre for Human Rights, National University of Ireland, Galway, Ireland

Publication date: 2009-04-01