The concept and understanding of the meaning of marriage in the Constitution has not been permanently frozen since the Constitution was adopted in 1937, lawyers for a lesbian couple have argued before the High Court.
Gerard Hogan SC said it was open to the Oireachtas, despite arguments by State lawyers to the contrary, to introduce legislation permitting same-sex couples to marry. The constitutional rights at the centre of the case were the rights to marry and to dignity.
He was making legal submissions in the action by Dr Katherine Zappone, a public policy consultant, and Dr Ann Louise Gilligan, an academic, against the Revenue Commissioners and the State.
They claim the failure by the authorities here to recognise their Canadian marriage as valid here breaches their right to marry under the Constitution, the European Convention on Human Rights and the European Charter of Fundamental Freedoms.
They also argue that if their Canadian marriage, in British Columbia in 2003, is not recognised they should have the right to marry within the State.
Legal submissions on behalf of the couple opened yesterday and are expected to conclude today after which Ms Justice Elizabeth Dunne will reserve judgment.
Mr Hogan argued that the meaning of marriage under Article 41 of the Constitution had not been frozen for all time. While he was sure both former president Éamon De Valera and John Hearn (a civil servant who drafted the Constitution) would "recoil" at the idea of same-sex marriages, Mr Hogan said they would never have contemplated that because at that time, homosexuality was misunderstood and regarded as something "to be ashamed of, immoral and unnatural". That was not the case today.
While the State was entitled to place restrictions on certain persons marrying, such as siblings or an adult and a child, the restriction here was based on the suspect categories of sexual orientation and/or gender, Mr Hogan submitted. The issue was what were the correct boundaries and limitations which could be placed on an existing constitutional right, such as as the right to marry.
Mr Hogan said Prof Harry Kennedy, clinical director at the Central Mental Hospital and a consultant psychiatrist, had given "a central piece of evidence" when he told the court that homosexuality was a "normal part of the human condition".
Mr Hogan also submitted that the action had nothing to do with any modern consensus view in relation to homosexuality. It would not matter if 99.9 per cent of people were against the marriage of same sex couples, the claim was that the two plaintiffs had a right to marry and that right was being infringed.