Constitution is not an obstacle to legalising gay marriage

The only court decision directly considering same-sex marriage was the Zappone judgment in 2007. The cascade effect to which I referred is the near-universal acceptance (by people who have never read the judgment) that that court found a constitutional amendment would be required to legalise same-sex marriage. In fact, while the High Court declined to recognise the applicant’s Canadian marriage, the judgment was unclear as to whether the term “marriage” in the Constitution is inherently opposite-sex. One passage suggested it may be but another suggested the key factor was consensus in society today, as represented in the most recent legislation on the point.

Katherine Zappone and Ann Louise Gilligan have opened fresh legal proceedings. They will argue (on slightly revised grounds) that, far from precluding same-sex marriage, the Constitution precludes a ban on it: the polar opposite of conventional wisdom.

There are strong legal arguments to support this view. However, courts are generally reluctant to interfere in matters that are the subject of intense political controversy, and the fact that this issue has been referred to the constitutional convention means a court decision in favour of same-sex marriage could be seen as subverting democracy.

Things need not be so black-and-white: there is a middle road available. The compromise view would be to say that while the vague provisions of Articles 40 and 41 of the Constitution do not guarantee same-sex marriage, they equally do not preclude it – the choice is a matter for the Oireachtas, which is free to reflect changing consensus in society by legislating for same-sex marriage without a referendum.

In light of the prevailing mantra about the limitations imposed by the Constitution, no government is likely to test this view by enacting such legislation in the absence of a court decision first clarifying the exact position.

The interpretation of the Constitution put forward here has the potential to strengthen rather than subvert democracy, by challenging politicians who are on the record as being in favour of marriage equality to follow through on their public statements and enact legislation to similar effect. It is all too convenient at present for political leaders to hide behind the Constitution and to refer matters to the convention, so that they can simultaneously appear reformist without taking responsibility for actual reform. Perhaps our courts can prod them into leading rather than meekly following.

Dr Conor O’Mahony lectures in constitutional law at UCC.