Marriage is an institution involving two people of the opposite sex which is given "special protection," under the Irish Constitution but the Constitution does not give same sex couples the right to marry, lawyers for the State argued in the High Court today.
The right to marry under the Constitution does not apply to lesbians or gay couples because the wording in the Constitution relating to marriage plainly and unambiguously refers to a man and a woman, Mr Paul Gallagher SC said.
Mr Donal O'Donnell SC, also for the State, said a lesbian couple who contend their Canadian marriage should be recognised here or that they should have the right to marry here were making a "bold claim" which would have a range of consequences if upheld by the court.
There was no social change or public consensus that would allow the courts redefine what is meant by marriage, he said. The definition of marriage in the Constitution did not mean someone could simply "marry the person you love".
If that were the case, then the definition of marriage as set out in Article 41 of the Constitution would be "completely malleable".
Both counsel were making submissions for the State in the action by the plaintiff couple, 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 State authorities to recognise their Canadian marriage as valid here breaches their right to marry and to equality of treatment under the Irish Constitution, European Convention on Human Rights and the European Charter of Fundamental Freedoms.
They also argue that if their Canadian marriage, obtained in the Province of British Columbia in 2003, is not recognised here they should have the right to marry within the State.
The State denies the alleged breaches of rights. Today, Mr Gallagher submitted that the wording of the Constitution in relation to marriage was "plain and unambiguous".
Although the Constitution does not specifically state that marriage is between man and a woman or include a ban on a same sex union, it was self evident that such unions were not contemplated when the people adopted the Constitution, Mr O'Donnell said.
The only way the Constitution could be changed was by the people in a referendum and this was "a clearly identifiable route".
It was only by a referendum that, for example, divorce was introduced. The hearing, now in its second week, continues tomorrow before Ms Justice Elizabeth Dunne.