News Archive
Historical argument forwarded by the State in Same Sex Case Doesn't Stack Up
If there had been a law in 1937 which had prevented people from marrying on an irrational basis, such as having red hair, being left handed or wearing spectacles, even if it was the view of the majority, that law would undoubtedly have been found unconstitutional, Mr Gerard Hogan SC told the High Court today.
Yet, he contended, that was type of argument which Counsel for the State had forwarded when it made its assertions that the definition of marriage had to be understood within its historical context. He referred to evidence given by Professor Harry Kennedy, Consultant Psychiatrist and Director of the Central Mental Hospital, on day three of the case, which said that homosexuality was now understood as a human condition just like being left handed or having red hair. How then, he asked, could the State assert that the claim to the right to marry made by Drs Katherine Zappone and Ann Louise Gilligan, as two lesbians, a recognised and unchallenged normal human condition, was not an issue which centred on the vindication of Constitutional rights?
"The nature of homosexuality was misunderstood in 1937. It was considered immoral, furtive and unnatural," he said. "People in 1937 tacitly understood marriage in a particular way and excluded a particular type of marriage (same sex marriage) because of that misunderstanding. We now know that not to be the case."
He said that the assertion that the definition of marriage should be referenced to its meaning in 1937 meant that Counsel for the state wanted to fix marriage in "not even the permafrost but in the virtual arctic waste" of 1937. He reminded the Court that the marrying age in 1937 was 12 for a girl and 14 for a boy. He also pointed out other recognised understandings in 1937 such as the fact that only men could sit on juries, a situation which itself was declared unconstitutional 10 years later in the DeBurca case.
Mr Hogan also said that the vindication of the right to marry and human rights had nothing to do with a consensual argument, a point which had been forwarded by Counsel for the State when it said that the judiciary could not make a decision about a fundamental institution such as marriage without it going to the people. He rejected the separation of powers argument put forward by Counsel for the State referring to over 90 instances where statutes had been declared unconstitutional by the Courts. The courts, he said, were not concerned with majority attitudes, they were concerned with vindicating fundamental rights.
"This Court is charged by the Constitution with the task of adjudicating on the right which has been breached," he said. "The case would be no less strong if it could be established that 99.9% of the population was against it."
The Irish Constitution came into force in 1937.
When it comes to rearing children, it is the quality of the parent-child relationship which counts and not whether the parents or homosexual or heterosexual, a Consultant Psychiatrist told the High Court today. Overall, studies spanning two decades conducted in the US, England and Europe had not shown that there was any adverse impact on children being raised by gay and lesbian parents.
"Smoking in the home probably damages children more than any of the issues we're talking about," Professor Richard Green, Consultant Psychiatrist at the Gender Identity Clinic, Charing Cross Hospital, London, told the Court as he gave evidence by video link at the case being taken by Drs Katherine Zappone and Ann Louise Gilligan for recognition of their Canadian marriage.
"Children did well in all the studies," he said. "I find that very important."
He said a study which he had carried out in 1978 showed that the psychosexual development of children of homosexual parents was normal. At that time, he stressed, public attitudes towards homosexuality were more negative than now and the main motivation for the study was to look at whether the stigma attached to homosexuality might have an effect on the children. The level of teasing from peers, even at that time, was minimal.
A significant longitudinal study (stretching from the mid-1970s to 1992) of children of lesbian and heterosexual mothers showed that children of lesbian mothers reported more positive relationships with their mothers' female partners, both as adults and during adolescence, than the comparison group whose mothers had male partners
In another study in 1986 he, and others colleagues, again found no difference in psychosexual development between children of lesbian and heterosexual mothers. He also found that children of lesbian mothers were no less popular than those being raised by heterosexual mothers. A later study (2003) found that there was no difference in the rate of psychiatric disorder between children of lesbian mothers and children of heterosexual mothers.
Finally, he outlined the recent conclusions of the American Academy of Paediatrics' Committee (2002) which reported that no substantial differences were found between the children raised by homosexual parents and heterosexual parents. Lesbian mothers scored the same as heterosexual mothers in "self-esteem, psychological adjustment and attitudes towards child rearing." None of the children had gender identity confusion. Overall the children showed no differences in self-esteem, behavioural difficulties or academic success.
Professor Harry Kennedy, Clinical Director at the Central Mental Hospital, told the High Court today that the stigma of homosexuality can cause mental illness and depression, sometimes leading to clinical depression.
Giving evidence at the case being taken by Drs Katherine Zappone and Ann Louise Gilligan for recognition of their Canadian marriage (KAL Case), Dr Kennedy, a Consultant Forensic Psychiatrist, said that homosexuality was no longer considered a medical disorder, as it had been over previous centuries. Since 1973, psychiatric experts had considered it no more an abnormal condition than being young or old, having red hair or being left handed.
"The social consequences of homosexuality can give rise to stress, shame and embarrassment," he said. "In a proportion of people this can give rise to anxiety and depression."
He also outlined that research had established that a lack of social supports for homosexuals, which often resulted in a rise in subcultures, made the community more vulnerable to mental illness particularly depression.
This lack of social supports, and hence, older role models may have a particular effect on young gays and lesbians. Without visible role models of older homosexuals in open, stable careers and relationships, they often find that they have no route or direction follow, he said.
From a rights perspective he explained that the stigma of being gay or lesbian could lead to economic loss, marginalisation and the loss of social supports, adversities which have a direct and indirect effect on mental health.
Furthermore, the constant effort for many gays and lesbians in maintaining a false identity and the fear of discovery of identity could also make mental illness more likely.
Drs Zappone and Gilligan are seeking various remedies before the High Court. In particular, they are seeking a declaration that in failing to recognise their Canadian marriage, and in failing to apply the tax law provisions relating to married couples to them as a married couple, the State and the Revenue Commissioners have acted unlawfully, in breach of their constitutional rights to equality, to marriage, to property rights and family rights and in breach of their rights to privacy, marriage and non-discrimination under the European Convention on Human Rights.
Christianity has never had a single concept of marriage, according to theologian Professor Daniel Maguire, pointing out that Vatican II, for example, had changed the Catholic Church's view on the institution when it stated that procreation was no longer the primary purpose of marriage.
Presenting evidence at the case being taken by Drs Katherine Zappone and Ann Louise Gilligan for recognition of their Canadian marriage (KAL Case), Professor Maguire outlined the many concepts of marriage within the Bible including the concept of polygamous marriage and same sex marriage.
He said there was no regulation of marriage for the first 1000 years of Christianity and that the Church would have only occasionally had a religious service to mark a marital union ? usually the marriage of priests. Marriage was only declared a sacrament in 1215.
"In the present theological realm, it is unfair to have seven sacraments for heterosexuals and only six for homosexuals," he said. He also said that stigma or discrimination towards homosexuals within the Christian Church only manifested itself in the 14th century. Prejudice, he said, had continued since.
Professor Maguire is a Professor of Moral Theological Ethics at Marquette University, a Catholic, Jesuit Institution in Wisconsin (USA). He is also President of the Religious Consultation on Population, Reproductive Health and Ethics.
Drs Zappone and Gilligan are seeking various remedies before the High Court. In particular, they are seeking a declaration that in failing to recognise their Canadian marriage, and in failing to apply the tax law provisions relating to married couples to them as a married couple, the State and the Revenue Commissioners have acted unlawfully, in breach of their constitutional rights to equality, to marriage, to property rights and family rights and in breach of their rights to privacy, marriage and non-discrimination under the European Convention on Human Rights.
Same Sex Couple Taking Case Against State for Recognition of their Marriage Take to the Cinema for Dublin Film Festival
Drs. Katherine Zappone and Ann Louise Gilligan, the Irish couple taking a case against the state for recognition of their Canadian marriage, will tonight (August 3) open the 14th Dublin Lesbian Gay Film Festival (August 3-7) at the Irish Film Institute at 7.30 p.m. "Film can push the boundary of current conceptualizations of what it means to be lesbian, gay or bisexual in this world today," Dr. Zappone said. "A number of films on this year's programme look to the past and challenge us to realize that the past is not dead."
"Observing the struggle for lesbian and gay rights at various times and places in the last century immediately challenges us to look at the present in our globe and see either history repeating itself, or struggles for basic human rights for lesbian, gay and bisexual people just beginning," she continued
Dr. Gilligan said that while heterosexuals are seeing more movies in the big screen with a gay theme (Brokeback Mountain, etc) the very fact that they reach the 'general audience' signals often a rather bland analysis of the topices under consideration.
"A dedicated lesbian and gay film festival allows a more nuanced set of films to be shown which often shows the depth of prejudice, and of the height of love and joy ? that would not otherwise be seen."
The issue of partnership will be examined particularly this year on Saturday, August 5th. Drs Zappone and Gilligan along with others will host a discussion following two short films on the subject.
"These two films clearly challenge us to examine the issues of power, of complicit silence, of difference, of difference of age and culture, of opportunity and how each of these differences must be attended to if equality and rights are to be realised," Dr. Zappone said.
Katherine and Ann Louise will be opening this year's "Look Out 2006!" Dublin Lesbian & Gay Film Festival, on Thursday, 3rd August at 7:30pm. The opening night is to be a ticket only gala event, with the opening feature film preceded by the official opening of the Festival. Katherine and Ann Louise will also appear on Saturday, 5th August at 4:30pm as principle speakers at a partnership rights event in the Festival programme.
Come along and support the case for equality!
For details of the Festival, please visit the festival website at www.dlgff.ie
October 3rd, 2006 was today confirmed as the opening date for the case being brought by Drs Katherine Zappone and Ann Louise Gilligan, the same sex couple seeking recognition of their marriage in Ireland.
The couple said that they are looking forward to a positive outcome to their case despite the news today that a lesbian couple failed in their bid to have their Canadian marriage as a civil marriage in the UK. Drs Zappone and Gilligan said that Ireland now has an opportunity to lead rather than simply follow in the area of social justice.
The UK judge ruled that the marriage of Celia Kitzinger and Sue Wilkinson should be recognized as a civil partnership, but not as a marriage.
While civil partnership might allow same sex couples a broad range of marriage-like privileges, it does not confer equality of status and equality of rights on all Irish citizens, Drs. Zappone and Gilligan outlined.
"We are already married," they stated. "The primary way the State can promote and protect the rights and responsibilities of all its citizens ? straight and same sex ? in financial and familial issues is to open the Irish institution of civil marriage to same sex couples."
They also pointed out that the traditional institution of marriage has in fact changed over time. For example, divorce was introduced in Ireland in 1997 which required a constitutional change. They stated that they are looking for a continuation of this social process of change in marriage so that it can be enjoyed by all members of today's modern society.
Drs. Zappone and Gilligan were married in a civil ceremony in Canada on September 13th, 2003. Their marriage is valid for all purposes in Canada.
At the hearing of their action in October, Drs Zappone and Gilligan will seek a declaration that in failing to recognise their Canadian marriage, and in failing to apply the tax law provisions relating to married couples to them as a married couple, the State and the Revenue Commissioners have acted unlawfully, in breach of their Constitutional Rights and in breach of the European Convention on Human Rights. They are also seeking a declaration that the relevant provisions of tax law are unconstitutional and void. If they do not get recognition of their Canadian marriage, they are alternatively seeking a declaration that they are entitled to marry each other in Ireland.
A British same-sex couple, Celia Kitzinger and Sue Wilkinson, today were denied legal recognition of their Canadian marriage in the first such case to be brought in the UK. They have spent their life savings to bring the landmark legal challenge. The Court found that their right to private life does not require the state to recognise their marriage. Further, the Court determined that the right to family life does not extend to childless same-sex couples. Although the Court found that the couple had been discriminated against in their right to marry their partner of choice, this discrimination was justified to protect the traditional notion of marriage as a union between a man and a woman primarily with the aim of producing children.
Sue Wilkinson said: "We are deeply disappointed by today's judgment ? not just for ourselves, but for same-sex couples nationwide. Denying the validity of our marriage upholds discrimination and inequality. This judgment will not stand the test of time, and we look forward to the day when there is full equality in marriage for same-sex couples." Liberty legal officer Joanne Sawyer said: "Celia and Sue have bravely taken the first step on the road to securing equal marriage rights for same sex couples. I have no doubt that today's judgment will in due course be viewed as being out of step with contemporary values."
Background information
The Case
A British couple, Celia Kitzinger and Sue Wilkinson, who were legally married in Vancouver in 2003, asked the court to recognise their marriage under section 55 of the Family Law Act 1986. For an overseas marriage to be recognised in the UK it must be shown that the marriage was legal, recognised in the country in which it was executed, and that nothing in the country's law restricted their freedom to marry.
Celia and Sue argued that their marriage fulfils these requirements even though people cannot legally enter into same-sex marriages in the UK. The Civil Partnership Act 2004 (which came into force on 5 December 2005) allows same sex couples new rights as "civil partners." Despite having entered into a marriage in Canada in 2003, the UK automatically deemed Celia and Sue's marriage to be a civil partnership as of December 2005. Celia and Sue rejected the conversion of their marriage into a civil partnership, believing it to be both symbolically and practically a lesser substitute. They asked the court to recognise their overseas marriage in the same way that it would recognise that of a heterosexual couple. Sue and Celia argued that any failure to recognise the validity of their marriage constitutes a breach of their rights under Articles 8 (right to respect for private and family life), 12 (right to marry) and 14 (prohibition of discrimination) (taken together with Article 8 and/or 12) of the European Convention on Human Rights, which is incorporated into domestic law by the Human Rights Act 1998.
Liberty is assisting the couple in their legal challenge.
Further information at the Liberty website.
Transcribed by Margaret Breheny
Brian Finnegan talks to lesbian couple Ann Louise Gilligan and Katherine Zappone about their impending High Court battle to have their Canadian marriage recognised under Irish law.
Read More
The KAL Advocacy Initiative is a collection of organizations and individuals formed to encourage public debate about the issues being raised within the case being brought by Drs Katherine Zappone and Ann Louise Gilligan against the Revenue Commissioners and the State for legal recognition of their existing Canadian marriage (hereafter KAL Case). The case will come before the High Court on October 3rd 2006.
Read Full Report [.doc file]
The KAL Advocacy Initiative today welcomed the report issued by the Irish Human Rights Commission advising the State to recognise all couples. However, the KAL Initiative stressed that the only way the State can promote and protect the rights and responsibilities of all its citizens ? straight and same sex ? in financial and familial issues is to institute a mechanism for a partnership of full equivalence to marriage, that is ?civil marriage?. It was stressed, however, that civil marriage is quite separate from a religious marriage.
Read Full Report [.doc file]
A document has been prepared with the background to the KAL case. This can be downloaded here
This document requires Abode Acrobat Reader, which can be downloaded for free here.
The personal statement of Katherine Zappone and Ann Louise Gilligan, upon hearing of their success in getting permission to seek a judicial review can be downloaded here. A related press release relating can also be accessed here.
The 'Statement of Claim' Sent to the Courts to begin the process of seeking a date for the Judicial Review can be downloaded here.
The judgment delivered by Justice McKechnie, granting permission to seek judicial review, can be downloaded here.
Please also see Case Info for further information about the case.
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