The debate on the status of same-sex relationships is a debate about equality and human rights, argues Evelyn Mahon
The Options paper on the legal recognition of cohabiting heterosexual and same-sex couples reported in The Irish Times ("Improved terms for cohabiting couples proposed," November 23rd) is to be welcomed.
The recent case brought by lesbian partners Katherine Zappone and Louise Gilligan has opened up the definition of marriage and family for public discussion. The couple appealed to the High Court to have their legal marriage in Canada recognised by the Revenue Commissioners. It is important to review their case as part of the development of gay rights and review how other states have responded to similar demands for equality rights.
Essentially, the Zappone-Gilligan case is one that seeks the right of same-sex married couples to equal treatment (to married heterosexual couples). Such recognition would remove the discrimination they experience on the basis of their sexual orientation. Here married heterosexual couples receive favourable treatment under our familial taxation system. Married couples - when one predeceases the other - also benefit considerably under inheritance tax regulation. This is why marriage and its attendant rights and benefits were at the centre of the case.
Zappone and Gilligan wanted their marriage recognised, as many other non-Irish couples married abroad do, by filling out a form for the tax office. It was inevitable that a case like this would in time come before the courts, as gay and lesbian rights have been on the public policy agenda for some time and Irish governments have already implemented some equal-rights legislation in this area.
It began with the decriminalisation of homosexuality under Fianna Fáil minister for justice Máire Geoghegan Quinn. This was in response to the gay rights movement spearheaded in Irish and European court cases by Senator David Norris.
This legislation was a first step in the process of advancing the rights of lesbians and gays in Ireland.
The inclusion of sexual orientation in the Equal Status Act (2000) was a further advancement in the rights of gays and lesbians. This was an extremely important piece of legislation, vital to prevent discrimination on grounds of sexual orientation in the workplace. However, it also set the context for the recognition of other citizenship rights for gays and lesbians. The right to same-sex marriages is part of that trajectory.
In Ireland, marriage is a constitutional issue, based on legal interpretations of the 1937 Constitution. The latter was written in an era where there was little knowledge of sexuality, and its articles on the family supported the breadwinner/ housewife contract that dominated middle-class family life and was consistent with Catholic social teaching at the time.
What is surprising is that the Constitution and its articles on marriage make no reference to children. This is perhaps not surprising given the patriarchal era in which it was written. Indeed our present familial taxation system and its treatment of married couples is not dependent on the existence of children either. The taxation system has been characterised by policy analysts as a generous system in terms of spousal support for a non-earning spouse. The courts have played a role in interpreting the constitutional position on the family: for instance, in 1980 the Murphy v Attorney General case reified the favourable taxation treatment of married couples.
However, cohabitation, the rights of biological fathers, lone-parent families, divorce and step-families are now varieties of heterosexual families. In addition there are many gay and lesbian couples who cohabit and want to be lifelong partners. These changes led to formation of an all-party Oireachtas Committee on the Constitution focusing on the family. The committee's report this year did not recommend marriage for same-sex couples but proposed legislation that "could extend to such couples a broad range of marriage-like privileges without any need to amend the Constitution". Such legislation would, however, be a first step towards the recognition of their rights.
Comparatively, this is a second-best to marriage but it has worked in many countries that have had similar debates to those being heard here. Same-sex registered partnerships have been legalised in Norway, Sweden, Denmark, Finland and Iceland. In most of these countries the rights bestowed are identical to those of married couples but the word marriage is not used. Other countries bestow similar rights but call them other names.
These partnership recognition options provide equal treatment to same-sex couples to those enjoyed by married or legally cohabiting heterosexual couples. A number of countries, most recently, Spain (despite Catholic Church opposition) legalised same-sex marriage, as did Canada and the Netherlands.
Similarly, registered partnerships, if legalised here, could offer equivalent rights to same-sex couples as presently enjoyed by married heterosexual couples and that is the proposal in the report of the all-party committee. Such registered partnership could also be made available to cohabiting couples who do not want to marry.
However, it must also be recognised that for many same-sex couples the legal right to marry must be interpreted as symbolic as well as bestowing rights. For gay and lesbians who have felt like outcasts, socially excluded and stigmatised by their sexual orientation, the legal right to marriage is a recognition of social inclusion - that they are no longer deviant or outcasts, that they are in a relationship that is just as valued as any heterosexual one.
• Dr Evelyn Mahon is attached to the School of Social Work and Social Policy at Trinity College Dublin