A LESBIAN couple are considering whether to continue with their Supreme Court appeal against a finding they do not have the right to marry here under the Constitution.
The Supreme Court yesterday refused to allow Senator Katherine Zappone and Dr Ann Louise Gilligan amend their grounds of appeal to include a claim a section of the Civil Registration Act 2004 is unconstitutional.
Their lawyers indicated afterwards the couple will consider whether to continue with the appeal in those circumstances. The couple have appealed the 2006 landmark High Court judgment of Miss Justice Elizabeth Dunne who ruled marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex.
In refusing yesterday’s motion to amend, Mrs Justice Fidelma Macken said the proposed new ground of appeal “could affect a significant number of other persons” and have “significant public policy consequences”. Mrs Justice Macken said arguments in relation to the constitutionality of section 2.2 of the Civil Registration Act 2004 were not fully raised before the High Court and not considered in Ms Justice Dunne’s judgment, although the matter was “touched upon”.
The 2004 legislation included a prohibition to same-sex marriage and stated there was an “impediment to a marriage” if “both parties are of the same sex”. Mrs Justice Macken said the matter involved “a piece of constitutional and legislative history” and before such an issue could come before the court, it had to be “fully ventilated” at High Court level.
It was not appropriate to grant the application to amend at this point, she said.
Earlier, senior counsel Michael Collins, for Dr Zappone and Dr Gilligan, said eight days were spent arguing about a single constitutional issue in the High Court and this “shadow” of a statutory issue had emerged.
Mrs Justice Macken said an application to amend the pleadings could have been made when the provision was enacted.
Senior counsel Maurice Collins , for the Revenue Commissioners and the State, said this “critical question” was never put before the High Court and could not be raised at this stage.
In her lengthy 2006 judgment, Miss Justice Dunne had said one of the “curious aspects” of the case was that a provision in the Civil Registration Act had not been “challenged” in the proceedings.
Dr Zappone, a public policy consultant who has been appointed a Senator, and Dr Gilligan, an academic, had brought their action against the Revenue Commissioners and the State. Dr Zappone and Dr Gilligan have been together for almost 30 years and married, in British Columbia,Canada, in 2003.
They claimed the failure to permit them marry here or recognise their Canadian marriage as valid here breached their rights.