Maebh Harding, The Right to Marry in Irish Law: Three Different High Court Approaches (September 7, 2009). Available at SSRN: http://ssrn.com/abstract=1729237
Article 41.1.1 of the Irish Constitution gives constitutional protection to the institution of marriage in Irish law. In recent Irish High Court decisions this constitutional protection of the institution of marriage has been used to deny the right to marry to same sex couples and transsexual individuals. This paper will explore the interaction between the right to marry in Irish law and the constitutional protection of the institution of marriage. Three contemporaneous Irish High Court judgments will be examined to show the lack of consensus on the ambit of the right to marry and the force of Irish constitutional protection of the institution of marriage – O’Shea v. Ireland, Foy v. An t-Ard Chlaraitheoir (No.2) and Zappone v .Revenue Commissioners.
The paper will draw parallels between the Irish discourse and decisions of the European Court of Human Rights in cases such as Goodwin and Wena & Anita Parry v. UK to examine whether the goal of protecting a traditional definition of marriage is a valid justification for restricting the right to marry.
