Supreme Court rules that same sex couples are not a "family" under the Constitution.

[White Horse]

Following the fanfare accompaning the recent introduction of the Civil Partnership Bill, I was surprised that the Supreme Court was so emphatic in ruling that a same-sex couple did not constitute a family.

The High Court had previously ruled that a same sex couple should be "regarded as being a de facto family and enjoy family rights under the European Convention on Human Rights."

This has been unanimously overturned by the Supreme Court:

Ms Justice Susan Denham ruled there was no such institution as a 'de facto' family in Ireland and that the lesbian couple were not a family under the Constitution.
RTÉ News: Sperm donor granted access to child

I think this ruling provides ammunition for those in the homosexual lobby who argue that a constitutional referendum on same-sex marriage is essential in order to achieve equality with married people.

[johnfás]

I'm not in the least surprised with the judgment which is in keeping with the jurisprudence of the Supreme Court. I wonder was the reasoning cited similar to that of the previous cases which have had similar facts (such as Zappone) where it was held that on any reading a same-sex couple cannot be currently considered a Constitutional family (I say that as neutral to whether they should be or should not be in the context of this post). Even if you take account of societal changes, the legislature still legislates on the basis of the marital family so that argument cannot be sustained.

The Supreme Court is correct that you cannot change the definition of a family without recourse to a Referendum.

[White Horse]

The Supreme Court is correct that you cannot change the definition of a family without recourse to a Referendum.

That was always my opnion. However, some posters have argued strongly that the Constitution should be interpreted as a "living document".

The Supreme Court is indicating that it does not share this view.

[johnfás]

That was always my opnion. However, some posters have argued strongly that the Constitution should be interpreted as a "living document".

The Supreme Court is indicating that it does not share this view.

In Zappone the Supreme Court held that even if it is treated as a living document, a same-sex couple cannot be considered to be a marital family. The Court held, in that case, that the most obvious example of what society is thinking from a structural point of view, is the attitude of the legislature and there has been no examples of the legislature seeking to treat same-sex couples as the same as the marital family, which is the definition of a family under the Constitution. So the argument is moot. It is a bit of a self perpetuating argument though because even if the legislature did take such an approach it would result in a judicial review.

Simple fact is the idea of a same-sex couple being the equivalent of a constitutional family is not compatible with our constitution as currently written. That does not mean the situation is, or is not, as it should be. It is merely a restatement of how it currently is. It is not a defeat for a liberal agenda, whose proper forum if they want a change is Leinster House and then to the people, not the Four Courts.

Worth a shot though.

[Spacewagon]

I think you are slightly misinterpreting what the Supreme Court ruled. They ruled that their was no such entity as a "de facto" family, recognised by the Constitution, and therefore the original judgement should not had based its judgement on the basis of the lesbian couple being a de facto family

The fact that the couple was "same sex" was irrelevant, and the judgement would be applicable in different sex couples as well

For example, if a woman became pregnant by a guy, but broke up with him without telling him (perhaps she cheated on an original bf or husband), had the baby, and then refused access to the child citing that the father was not part of her "de facto" family, then this judgement would negate that term and the natural father would be entitled to his constitutional right of access to his children

I think the biggest problem in these cases, is that the Constitution does not actually specify what a family is

[Clanrickard]

I am very pleased with this judgment. It is correct and proper that a biological father be granted access to his child. What should happen is that 2 referenda be held. One that gives same sex couples the right to be recognised a s a family and a second which gives automatic guardianship over his off spring unless there are grounds which a court decides he may harm the child or pose a threat to its welfare.

[johnfás]

They ruled that their was no such entity as a "de facto" family, recognised by the Constitution, and therefore the original judgement should not had based its judgement on the basis of the lesbian couple being a de facto family.

Absolutely. The idea of a "de facto" family is constitutional nonsense. As I stated above, the consistent approach of the courts is that a constitutional family is a marital family. It causes all sorts of difficulties, not least the rights of a father where a child is born where the parents are not married. But the correct way to change that is at Leinster House and thereafter a Referendum.

The Supreme Court is becoming less and less activist and more regimented in these matters, has been doing for years - and rightly so. The place to make law is in Leinster House and the place to change the Constitution is before the people. Not the courts. As I said though, no harm in trying.

[marmurr1916]

It's a strange judgement because it doesn't take into account the fact that the European Court of Human Rights has ruled that even non-marital families have Article 8 ECHR rights to family life.

Supposedly, the most relevant Irish statute (European Convention on Human Rights Act 2003) compels Irish courts to interpret the law and constitution in the following manner:

2.—(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.

According to the case law of the ECtHR, non-marital families (de facto families in the Supreme Court's language) are entitled to the protections of Article 8 ECHR provided that the relationship is a reasonably stable and sustained one.

The report of this case shows that the lesbian couple's relationship was (and is) a stable and sustained one:

In her judgment today, Ms Justice Susan Denham noted the lesbian couple have lived for years in a loving relationship and provide a settled and loving home for the child. These were critical factors in the case, she said.

However, she also said that 'the High Court judge erred in applying the European Convention of Human Rights to the case and in his finding the lesbian couple had rights under Article 8 of the Convention.'!

That seems wrong to me - it seems, based on ECtHR case law, that the High Court judge was correct in stating that the lesbian couple, as a non-marital or de facto family, have rights under Article 8 ECHR.

Conflicts over what types of family in Ireland have Article 8 ECHR rights look set to continue under the current Supreme Court:

[FONT=TTE17DB4A0t00]

Why is the legal definition of “family” in Ireland so rigid, so inflexible and fixed? The answer to this question lies in Article 41 of the Constitution and the interpretation afforded to this provision by the Irish Supreme Court. In the face of a restrictive interpretation of the “family”, individuals have sought redress under international law through international human rights treaties.

[/FONT]

[FONT=TTE17DB4A0t00]The most significant international human rights treaty from an Irish perspective is the European Convention on Human Rights (ECHR). Article 8 of the ECHR guarantees as a basic right, the right to respect for private and family life, home and correspondence. It is concerned more with the substance rather than the form of the relationship. The ECHR unlike the Irish Constitution makes no distinction between the family life of a marital and non-marital family. The law in Ireland on the other hand leans strongly against the non-marital family.[/FONT]

[FONT=TTE17DC418t00]De facto [/FONT][FONT=TTE17DB4A0t00]families are effectively outside the ambit of legal protection in Ireland. Yet given that the ECHR has now been incorporated into Irish law, this situation of non-recognition can no longer feasibly prevail.[/FONT]

http://www.onefamily.ie/userfiles/Fi...%2009.04ab.pdf

[Spacewagon]

It's a strange judgement because it doesn't take into account the fact that the European Court of Human Rights has ruled that even non-marital families have Article 8 ECHR rights to family life.

Supposedly, the Irish statute (European Convention on Human Rights Act 2003) compels Irish courts to interpret the law and constitution in the following manner:


According to the case law of the ECtHR, non-marital families (de facto families in the Supreme Court's language) are entitled to the protections of Article 8 ECHR provided that the relationship is a reasonably stable and sustained one.

The report of this case shows that the lesbian couple's relationship was (and is) a stable and sustained one.
It seems that our Supreme Court judges need re-training in both domestic law and ECHR law!

Hmm, try that alright, just try forcing the Supreme Court to take a back seat to the ECHR on a topic like homosexual adoption or gay marriage rights, in the very first case after Lisbon, and just sit back and watch teh reaction

[stringjack]

I think this ruling provides ammunition for those in the homosexual lobby who argue that a constitutional referendum on same-sex marriage is essential in order to achieve equality with married people.

For that to be true, it would have to be the case that a referendum would be required to introduce same-sex marriage. As far as I can see, that isn't the case.