Zappone & Gilligan v Revenue Commissioners: a feminist re-writing

Over recent years, Máiréad Enright, Aoife O’Donoghue and Julie McCandless have been leading the excellent Northern/Ireland Feminist Judgments Project. This takes the core idea of feminist judging from the original project of Rosemary Hunter, Clare McGlynn and Erika Rackley and applies it, with particular variations, to Ireland and Irish cases. Enright, O’Donoghue and McCandless have led the development of a close and intellectually challenging community of feminist scholars from, in and interested in Ireland, developed an excellent website, and edited what promises to be an excellent book bringing feminist judgments, commentaries and critical perspectives together. My contribution to that book was to attempt a feminist rewriting of Zappone & Gilligan v Revenue Commissioners & Ors.

As many readers will know, this case was an attempt to have a Canadian marriage between the plaintiffs–both women–recognised in Ireland and, as part of that, to establish a constitutional right to marriage that included the right to marry someone of the same biological sex. The case failed in the High Court and the Supreme Court appeal was dropped last autumn following the announcement that a referendum on same-sex marriage was to be held. The referendum was successful and there is now a constitutional right to marry someone of either the same or the opposite sex in Ireland. However, the High Court decision was problematic in a number of ways, not least the fact that it placed undue weight on the welfare outcome of same-sex marriage for children (the plaintiffs had no children). There was, thus, some scope for a feminist rewriting that I hope I managed–with excellent editorial guidance–to capture.

The pre-print version is here. While in the end I came to the same conclusion as Dunne J. had done in the real-life decision, I tried to do so in a materially different way. I close the judgment as follows:

In their evidence to this Court and in their lives together the plaintiffs have amply demonstrated their love and commitment for one another and eloquently explained the importance, for them, of having their marriage recognized by law at home in Ireland. Although the strict result of this case is that the plaintiffs cannot require the state to treat them as a married couple for the purposes of tax, it is of greater significance than mere taxation. My judgment means that the state may—although not that it must—treat their relationship as something lesser than marriage, and their love as one that cannot be contained within the institution of marriage as recognised by the Constitution. It is to be hoped that the Oireachtas will return to this matter and consider seriously whether such an outcome is truly just, and in-keeping with our constitutional values of prudence, justice and charity.


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