Principled Expediency: How the Irish Courts Can Compromise on Same-Sex Marriage

Abstract

As lawyers, we like to think of law as being rather different from politics – as having brighter lines and a more principled approach to the resolution of problems. However, the line between constitutional law and politics is a thin one, particularly in those landmark controversies that constitutional courts are called on to resolve from time to time. When society is divided on the scope or even the existence of a right, judges called upon to adjudicate on the controversy need to be more than good lawyers; they need to have a keen political awareness as well. This connection between constitutional adjudication and the prevailing political climate was a prominent theme of the work of the celebrated constitutional theorist, Alexander Bickel.

The purpose of this paper is to explore the potential application of Bickel’s work to a classic example of a political controversy that has become a matter of constitutional litigation: same-sex marriage. In 2006, the Irish High Court upheld the Revenue Commissioner’s refusal to recognise Katherine Zappone and Ann Louise Gilligan’s Canadian marriage. A much delayed Supreme Court appeal was eventually abandoned, but a fresh challenge on different grounds is due to recommence in the High Court. In the meantime, various legal and political circumstances have changed. It will be argued that the High Court can do a better job the second time around, and that a solution is available that balances principle with expedient compromise in a way that could provide some satisfaction to both sides of the debate and encourage a political rather than a legal resolution of the issue.

Keywords: Constitutional Law, Same-Sex Marriage