Same Sex Marriage Decision in California and its Possible Value in Irish Litigation

Yesterday the California Supreme Court declared state statutes that defined marriage as being between a man and a woman as unconstitutional (by reference to the Californian Constitution). In In re Marriage Cases (Cal. May 15, 2008) (Opinion) the State Supreme Court held that the essential substance and significance of the right to found a family required that the Californian Constitution had to be interpreted in a manner that would guarantee the right to all Californians, whether in opposite or same-sex relationships. Although California already had impressive domestic partnership laws that gave registered couples almost all the rights and obligations of marriage, the Supreme Court held that absolute equivalence was required. The Court did not hold that the term ‘marriage’ would have to be used to describe the required new legal framework, but whatever is introduced must be exactly the same in every way, including in name, for opposite and same-sex couples.

This decision echoes many of the elements of Perez v Sharp [(Oct. 1, 1948) 32 Cal.2d 711, 198 P.2d 17] – a decision from the same court in 1948 overturning laws that barred interracial marriage. As in Perez the Court held that the right to marry is a fundamental human right and means a right to establish a legally recognized family with a person of one’s own choice. Although this has historically been an opposite-sex structure, George CJ held that “tradition alone…does not justify the denial of a fundamental constitutional right”. The Court again echoed Perez when it held that the equal protection clause was engaged in relation to marriage-bans for same-sex couples. This case is the first one (to my knowledge) where a federal court has held that ‘strict scrutiny’ applies to differentiated treatment based on sexual orientation. In relatively simple terms, this means that rigorous justification must be advanced for differentiated treatment – ‘tradition’ would not be enough. [An ECHR lawyer can not help, it seems, but to hear echoes of Karner in this element of the judgment].

In re Marriage Cases is an extremely important decision for American law – its constitutional reasoning seems very sound, although there is an activist element which the dissenting judges, who claimed marriage was a question for the legislature alone, were particularly critical of. This case may also be useful in Ireland where constitutional principles are not entirely dissimilar to those with which the Californian Supreme Court was dealing. The Irish Constitution includes a right to marry [which does not specify marital form] and an equality clause [admittedly quite weak in historical perspective]. It seems quite plausible that similar reasoning would fit within our constitutional framework and it is to be expected that In re Marriage will make a comparative law appearance when the Supreme Court hears the appeal in Zappone & Gilligan v Revenue Commissioners. [KAL Case information is available here]

High Court suggests Article 8 Protections for Same-Sex Families

The High Court yesterday handed down judgment in a case involving a man who had donated sperm to a lesbian couple on foot of an agreement between them that, while he was to have ‘favoured uncle’ status, he was not to be involved in parenting in any way. Once the baby was born the donor attempted to play a parental role, including by acquiring an injunction to prevent the couple and their child from travelling to Australia for a year. Yesterday Mr Justice John Hedigan held that the man has misled the couple as to his true intentions and had nothing more than a biological connection with the child; the child and his mothers, on the other hand, could be said to constitute a family within the meaning of Article 8, ECHR. Justice Hedigan recommended legislative action in relation to same-sex couples in Ireland including provisions relating to situations where a couple may wish to parent and for one of them to bear a child. The judgment appears not yet to be available online, but the RTE News report is here.

The judgment is significant not only because of its timing (the heads of a proposed Civil Unions Bill are expected to be released shortly), but also because Justice Hedigan’s holding that the couple and their child could enjoy the right to family life under Article 8 is an advancement of the ECtHR’s own jurisprudence on whether same-sex couples with or without children can be regarded as ‘family’ under Article 8.

The Strasbourg court has not yet definitively considered whether a same-sex cohabiting couple constitutes a unit entitled to respect for their family life under Article 8 (although in cases such as Karner v Austria (2003) it has protected same-sex couples under the rubric of privacy). In an earlier decision of the Commission it was held that the relationship between two women and the child of one of them did not constitute family life. In this case, Kerkhoven & Hinkle v Netherlands (1992) the Commission noted that there was no legal impediment to the three living together in the Netherlands but acknowledged that the difficulty lay in the non-biological parent establishing legal links with the child. The Commission acknowledged that such a legal relationship would have important practical implications for the child and non-biological parent, however they felt that the fact that the relationship between the two women did not constitute family life meant that there was no obligation on the state to allow the establishment of such a legal relationship. As Kerkhoven was a Commission decision, as opposed to a decision of the Court, the reasoning is not greatly elaborated upon. In fact little or no justification is offered by the Commission for this conclusion.

Kerkhoven again arose for consideration, however, within the context of X, Y & Z v United Kingdom (1997). This case concerned a family unit comprising a woman, her biological child and a post-operative female-to-male transsexual. The couple had been together since 1979 (just before his gender realignment surgery) and the child was born in 1995 (after the gender-realignment surgery). The child had been born by means of artificial insemination which, after some substantial effort on the part of the couple, had been provided and funded by the National Health Service. X had attempted to be registered as the father of the child on his birth certificate but was informed that only a “biological man” could be so registered. This application claimed that this decision was a breach of the unit’s right to family life, particularly given the practical benefits of such legal recognition of the relationship between X and the child (whose birth certificate was left blank under ‘father’). The Government first claimed that no family life existed between the couple as they were to be regarded as two women living together. The Court considered that X and Y could not be considered as two women living together as they lived, socially, as man and woman and, as a result, apart from the legal prohibition on marrying their relationship was indistinguishable from that between a man and a woman. In the circumstances, and in particular with regard to X’s involvement in the AID process from the beginning and the close and de facto personal ties enjoyed between the three applicants, the Court found that they could be regarded as a unit deserving of protection for their family life. Significantly the Court did not substantially revisit Kerkhoven in this decision, rather it focused on the three together and the social reality of the relationship between the couple. In the end the Court held that there had been no violation of Article 8 by precluding the registration of X as father on he birth certificate because of the transitional stage of the law, the lack of a sophisticated personal identity register system in the UK and the relative unimportance of a birth certificate in legal terms.

These decisions, however, took place against a very different politico-legal background to the one currently in existence in the Council of Europe – nowadays a great number of COE states have some kind of legislative framework concerning the rights of same-sex couples and, in some cases, any children they may be raising and the visibility of same-sex families and ‘gay parenting’ is much increased. In addition, the European Court of Justice (EU) has recently expanded the recognition of same-sex couples, including in the context of pension entitlements, where the partners “live in a union of mutual support and assistance which is formally constituted for life” (Maruko, 1 April 2008). Taking into account the margin of appreciation and the importance in ECHR jurisprudence of the emergence of ‘consensus’ across much of the COE member states, the conclusion that appears to have been reached by Justice Hedigan yesterday would likely now be reached by the Strasbourg Court in an analogous current case.