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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Norris v. A.G. [1983] IESC 3; [1984] IR 36 (22 April 1983) URL: http://www.bailii.org/ie/cases/IESC/1983/3.html Cite as: [1983] IESC 3, [1984] IR 36 |
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No. 5793p of 1977
O'Higgins CJ
Finlay P
Henchy J
Griffin J
McCarthy J
(Plaintiff)
(Defendant)
Judgment of O'Higgins C.J. delivered 22nd of April, 1983
In these proceedings the plaintiff seeks a declaration that ss. 61 and 62 of the Offences Against the Person Act, 1861, and s. 11 of the Criminal Law Amendment Act, 1885, are inconsistent with the Constitution and, therefore, were not continued in force by Article 50 thereof and do not form part of the law of the State. His claim, having been considered and rejected in the High Court, has been brought to this Court by way of appeal.
The legislation which the plaintiff challenges provides for the criminalisation and punishment of sexual acts and conduct of a kind usually regarded and described as abnormal or unnatural. Section 61 of the Act of 1861, as amended, deals with the offence of buggery committed with mankind or an animal, and provides a maximum penalty of penal servitude for life. Section 62 of the same Act deals with associated offences, such as attempts and assaults for the purpose of committing buggery, and specifically covers indecent assaults on a male person; a maximum penalty of two years' imprisonment is provided. Section 11 of the Act of 1885 provides as follows:-
"Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour."
It is to be noted that the offences dealt with in ss. 61 and 62 of the Act of 1861 can, in relation to mankind, be committed with or upon a male or female person, but can only be committed by a male. It is also to be noted that the offence dealt with in s. 11 of the Act of 1885 only applies to male persons, that the section applies irrespective of the ages of the male persons involved and irrespective of whether the act is committed in public or private, or with or without consent. While the impugned legislation does not expressly deal with homosexual practices and conduct, it is accepted that the effect of the three sections, taken together, is to prohibit and criminalise such conduct between male persons. No similar prohibition exists in relation to such practices and conduct between females.
The plaintiff is now and has been, since 1967, a lecturer in English at Trinity College, Dublin. He is aged 38 and is unmarried. Although born in Leopoldville, in the former Belgian Congo, he is an Irish citizen. He has asserted in his statement of claim and in evidence that he is congenitally and irreversibly homosexual in outlook and disposition, that he is neither sexually attracted to nor has he any interest in women, that he desires a sexual relationship based on his congenital orientation and that for him any heterosexual relationship, such as that of marriage, is not open or possible.
He claims that at an early age his realisation of his own feelings and disposition, and a growing awareness of public attitudes and of the state and sanctions of the criminal law, not only caused him considerable anxiety and distress but also led to a profound nervous illness which required protracted medical care and counselling. When he recovered from his illness, he decided to declare himself publicly as a homosexual and, with other homosexual men and women, formed an association known as the Irish Gay Rights Movement, of which he became chairman. In this capacity he was interviewed on television and was given an opportunity to explain the aims and activities of the movement. He is at present involved in two similar organisations – the National Gay Federation and the Committee for Homosexual Law Reform. Although known to be a homosexual and to have indulged in homosexual activities, he has never been prosecuted, nor has any member of the organisations with which he is or has been associated. He has, however, had the experience, some time in 1976, of his cross-Channel mail being opened by the authorities, but this does not appear to have been continued.
This action has been brought by the plaintiff as an individual citizen. It is not a representative action nor one brought on behalf of the organisations or groups with which he is identified, although the fact of the existence of such groups and of people with similar dispositions, feelings and outlooks may be relevant. It is as a personal litigant seeking the relief claimed that the plaintiff's rights and standing in bringing this action fall to be considered.
In the course of his evidence at the trial, the plaintiff, on many occasions, made it clear that his purpose, in the meetings he attended, the interviews he gave and in the organisations with which he is associated, is to achieve a reform of the law by the decriminalisation of certain homosexual activities. He indicated in evidence the reforms and changes which he wished to achieve which would provide protection for the young and incapacitated, but would free from all criminal sanctions homosexual conduct carried out in private between consenting male adults. Lest it be thought that this Court could or should consider the merits of such proposed reforms or express any view thereon, I desire to make it clear that such is not and can never be a function of this Court. The sole function of this Court, in a case of this nature, is to interpret the Constitution and the law and to declare with objectivity and impartiality the result of that interpretation on the claim being considered. Judges may, and do, share with other citizens a concern and interest in desirable changes and reform in our laws; but, under the Constitution, they have no function in achieving such by judicial decision. It may be regarded as emphasising the obvious but, nevertheless, I think it proper to remind the plaintiff and others interested in these proceedings that the sole and exclusive power of altering the laws of Ireland is, by the Constitution, vested in the Oireachtas. The Courts declare what the law is – it is for the Oireachtas to make changes if it so thinks proper.
In this case we are concerned only with the question whether the items of legislation which are challenged in these proceedings have, in whole or in part, been carried over or re-enacted into our corpus juris by the people when they enacted the Constitution in 1937. Whether they have been so re-enacted depends on whether they passed the tests prescribed by Article 50, s. 1, of the Constitution. That section provides:-
"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."
The purpose of Article 50, s. 1, is to continue in force the laws which had previously operated in Saorstát Éireann, with as few exceptions as possible. The phrase "subject to this Constitution" indicates an obvious requirement that, in order to be operable in the new State, such laws must fit into the framework of, and be controlled by, the Constitution. If, by the nature of their provisions, this were not possible, such laws, on that account alone, could not be continued. Subject to the Constitution in that sense, such laws are to continue to be of full force and effect "to the extent to which they are not inconsistent therewith."
If Article 50 had provided that such laws would continue to be of full force and effect "to the extent to which they are consistent with the Constitution" would it have the same meaning and effect? In my view, it clearly would not. In such circumstances, consistency would have to be proved and in the absence of such proof the law or laws would be inoperative. However, according to the actual words used in Article 50, the law or laws in question operate unless inconsistency is established, and the onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-Constitution laws enjoy any presumption of consistency or constitutional ity. They do not. Each such law must be examined to see what it purports to authorise or permit. If on such examination it emerges that the law permits what the Constitution prohibits or forbids what the Constitution sanctions, then inconsistency is established, and to the extent thereof the law would be declared to have ceased to have effect on the coming into operation of the Constitution.
While this case is concerned with legislation passed not by the Oireachtas of Saorstát Éireann but by the British Parliament, it has proceeded on the basis that such legislation survived the foundation of the State in 1922 and was in force as part of the laws of Saorstát Éireann immediately prior to the coming into operation of the Constitution of 1937. Accordingly, the question is whether it was continued under Article 50. If on examination of such legislation now, in the light of the Constitution as it has been interpreted and understood since its enactment, inconsistencies are established, such legislation, to the extent thereof, must be held not to have been so continued. To achieve this result, however, the plaintiff must show that such inconsistencies exist. It is not sufficient to show that the legislation is out of date, is lacking in public support or approval, is out of tune with the mood or requirements of the times or is of a kind impossible to contemplate now being enacted by Oireachtas Éireann. Unless inconsistency is established, such legislation, no matter what its defects or blemishes may be, is continued by the express terms of Article 50 "to be of full force and effect" until repealed or amended by enactment of the Oireachtas.
I now turn to the manner in which the impugned legislation has been challenged by the plaintiff. In considering this challenge I will, for convenience, regard the first two sections (ss. 61 and 62 of the Act of 1861) as dealing with buggery, and the other section (s. 11 of the Act of 1885) as dealing with gross indecency.
The plaintiff contends that a continued designation as crimes of the conduct dealt with in these sections is inconsistent with the observance of certain rights which the Constitution guarantees to citizens. While the extent of his complaints varies according to the conduct and its criminal designation, it will be possible to deal with them in association with each of the constitutional provisions to which they are referable. Apart from particular provisions of the Constitution in respect of which inconsistency is alleged, the plaintiff also contends that, having regard to the development in medical and psychological knowledge of human sexual behaviour, and the greater understanding to-day of homosexuality, the designation of such conduct as criminal conflicts with the values of a society which the Constitution's preamble proclaims to be based on the "due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured . . ." In short, the plaintiff's case is based partly on a reliance on particular Articles of the Constitution and partly on its general policy as indicated by the preamble.
I will now refer to the constitutional provisions upon which the plaintiff relies, and will endeavour to state the plaintiff's case in respect of each such provision as I understand it. These provisions are as follows:-
1. Article 40, s. 1 – With its qualification as to regard being had to differences of capacity, physical and moral, and of social function, this provision guarantees equality before the law for all citizens. The plaintiff contends that the prohibition, in respect of the offence of gross indecency, of homosexual conduct between male persons only constitutes in two respects a discrimination which is invidious and unfair against such male citizens who are homosexual. In the first place he contends that such a prohibition ignores the sexual conduct involved in adultery, seduction and fornication, which are outlets open to heterosexual male citizens and, on that account, puts male homosexuals in a position of inequality before the law. It is also contended that, even if it were said that homosexual citizens have different capacities from heterosexual citizens and that the law can have regard to such differences, nevertheless, the regard which the law must have is "due regard" and this could not include the designation as criminal of the very expression of the difference in capacity which is inherent in such citizens. In the second place the plaintiff says that gross indecency, as an offence, is confined to sexual conduct between males. Similar or associated sexual conduct between female citizens who have a homosexual or lesbian disposition is not prohibited. On this account the plaintiff complains that the section creating the offence discriminates against male homosexuals solely on the ground of their sex and in a way which is unrelated to any difference of capacity, physical or moral, or of social function. For these reasons, the plaintiff contends that s. 11 of the Act of 1885, which creates the offence of gross indecency, is inconsistent with the provisions of Article 40, s. 1, of the Constitution.
2. 2. Article 40, s. 3 – Under this provision the State guarantees to respect and, as far as practicable, to defend and vindicate the personal rights of citizens. These personal rights are not merely those rights expressly referred to in the Constitution but include also other rights, unenumerated, which fall to be recognised arid declared as the Constitution is construed and interpreted. The plaintiff contends that among these unenumerated rights of citizens is a right of privacy. He claims that this right, which was identified by this Court in McGee v. The Attorney General [1974] IR 284 is not confined to a right of marital privacy. He alleges that it encompasses, but is not exhausted by, the right of a husband and wife to privacy in their sexual relations within their marriage. He contends that it is a right which adheres to every citizen as such and which places a limit on the power of the State to control his personal conduct where neither the exigencies of the common good nor the protection of public order or morality necessitates such control. He claims that the existence of this right must be implied from the preamble when it speaks of the dignity and freedom of the individual, and its protection must be guaranteed by Article 40, section 3. Reliance was placed on the majority judgment of the Supreme Court of the United States in Eisenstadt v. Baird (1972) 405 U.S. 438 and, in particular, on a passage from the judgment of Brennan J. at p. 453 of the report. Reliance is also placed on a passage from the judgment of Budd J. in McGee v. The Attorney General [1974] IR 284 where he said at p. 322 of the report:-
"Whilst the 'personal rights' are not described specifically, it is scarcely to be doubted in our society that the right to privacy is universally recognized and accepted with possibly the rarest of exceptions, and that the matter of marital relationship must rank as one of the most important of matters in the realm of privacy. When the preamble to the Constitution speaks of seeking to promote the common good by the observance of prudence, justice and charity so that the dignity and freedom of the individual may be assured, it must surely inform those charged with its construction as to the mode of application of its Articles."
In so far as the impugned legislation seeks to control the sexual conduct of the plaintiff and like-minded citizens, carried on in private, the plaintiff claims that it constitutes an unwarranted intrusion into his private life, and is inconsistent with the State's duty to defend and vindicate his right to privacy which is one of his personal rights as a citizen.
The plaintiff further says, with regard to ss. 61 and 62 of the Act of 1861, that the conduct thereby prohibited extends to sexual acts and conduct between husband and wife, and that in this respect these sections are inconsistent with the defence and vindication of marital privacy as is required by Article 40, section 3.
The plaintiff also claims that the prohibition of all sexual acts between consenting male adults, even if carried out in private, threatens both the physical and mental health of homosexuals like him whose congenital sexual urges and feelings dispose them, inevitably, towards such acts. He further claims that the prohibition can injure and has injured the mental and physical health of homosexuals, including the plaintiff. He therefore contends that the existence of such a prohibition with its capacity for injury to the plaintiff and others constitutes a threat to the plaintiff's right to bodily integrity, and is inconsistent with the State's duty to defend and vindicate such right in accordance with Article 40, section 3. In this regard reliance was placed on Ryan v. The Attorney General [1965] IR 294 and The State (C) v. Frawley [1976] I.R. 365.
3. Article 40, s. 6 – The plaintiff's next complaint was that the prohibition of acts described as constituting gross indecency between consenting male adults, or of procuring or attempting to procure the commission of such acts, is inconsistent with the plaintiff's rights of freedom of expression and freedom of association which are guaranteed by the Constitution. The plaintiff says that such a prohibition inhibits or prevents him, and also other homosexual citizens, from advocating freely their views and discussing their outlook and convictions. Because of fear of prosecution, blackmail or intimidation, it also inhibits or prevents the plaintiff from associating freely with another male person or with other male persons to whom he may be sexually attracted.
Finally, as already mentioned, the plaintiff claims that, in the light of present-day knowledge and understanding of homosexuality as a condition which dictates particular sexual attitudes and tendencies, a State which is bound by the observance of charity and which seeks the dignity and freedom of the individual could not brand as criminal the very expression of such unavoidable attitudes and tendencies.
At this stage it is convenient to consider an objection to the plaintiff's case which has been submitted on behalf of the defendant. The objection is in the nature of a challenge to the plaintiff's locus standi to advance the arguments on inconsistency, or most of them, which he has advanced. The defendant's objection is based on the authority of this Court's decision in Cahill v. Sutton [1980] I.R. 269. That case dealt with the validity of s. 11, sub-s. 2(b), of the Statute of Limitations, 1957. The Court held that, as the challenge on validity which the plaintiff in that case put forward was based solely on the absence of a saver or proviso to the time limit laid down, which, if present, would riot have preserved her claim, she could not establish that any right of hers had been infringed or threatened by the absence thereof. Accordingly, the Court held that the plaintiff lacked the standing necessary to invoke the jurisdiction of the Court to determine the question of validity raised. In the course of his judgment, with which the other members of the Court agreed, Mr. Justice Henchy said at p. 284 of the report:-
"If a citizen comes forward in court with a claim that a particular law has been enacted in disregard of a constitutional requirement, he has little reason to complain if in the normal course of things he is required, as a condition of invoking the court's jurisdiction to strike down the law for having been unconstitutionally made (with all the dire consequences that may on occasion result from the vacuum created by such a decision), to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering."
The defendant seeks to apply the reasoning of that decision to this case and says that, in so far as the plaintiff's complaint against the impugned legislation is based on an alleged inconsistency with Article 40, s. 3, and with the State's obligation to protect the right to privacy, both as a claimed personal right of his as a citizen and as marital privacy in relation to married citizens, the plaintiff lacks the necessary standing to make such complaint. As to the general right to privacy which the plaintiff claims is guaranteed to all citizens, the defendant says that, if such exists, the plaintiff cannot point to any interference therewith so far as he is concerned. He has proclaimed himself publicly to be homosexual, he has been active in organising associations concerned with homosexuals, he has spoken on television and radio, yet he has never been prosecuted nor has he been intimidated in any way, and he continues to carry out, without interference, his normal duties as a lecturer in Trinity College, Dublin. In such circumstances, the defendant contends, the plaintiff has neither suffered nor is he in danger of suffering in any way from the legislation which he challenges and, accordingly, he cannot complain that his personal right to privacy has been threatened or endangered. As to the plaintiff's complaints that the sections of the Act of 1861 are inconsistent with the observance of marital privacy, the defendant says that it is not for the plaintiff to make such a case. Not only is he not married, but the whole thrust of the case which he makes is that, for him, and for homosexuals like him, who desire a lasting partnership in life, marriage is not open or possible. Accordingly, the defendant says that, in this respect also, the plaintiff cannot be heard to make a case which is not his nor to complain of a breach of a right which he has neither suffered nor is likely to suffer.
In my view, the defendant's objection, in so far as it applies to that part of the plaintiff's case which is based on marital privacy, is well founded and should be upheld. The basis of the plaintiff's case is that there exists in our society a significant number of male homosexual citizens, of whom he is one, for whom, sexually, the female offers no attraction, and who, desiring a stable relationship, must seek such amongst male companions of a similar outlook and disposition. For these, as the plaintiff clearly implied in his evidence (see transcript, Book 1, Q. 153), marriage is not open as an alternative either to promiscuity or a more permanent sexual relationship with a male person. This being so, it is nihil ad rem for the plaintiff to suggest, as a reason for alleviating his own predicament, a possible impact of the impugned legislation on a situation which is not his, and to point to a possible injury or prejudice which he has neither suffered nor is in imminent danger of suffering within the principles laid down by this Court in Cahill v. Sutton [1980] I.R. 269.
However, I do not agree with the defendant's submission that the plaintiff lacks standing to complain merely because he has not been prosecuted nor has had his way of life disturbed as a result of the legislation which he challenges. In my view, as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in, such right, if it exists, is threatened and the plaintiff has standing to seek the protection of the Court.
At the core of the plaintiff's challenge to the impugned legislation is the assertion that the State has no business in the field of private morality and has no right to legislate in relation to the private sexual conduct of consenting adults. It is the plaintiff's case that to attempt to do so is to exceed the limits of permissible interference and to shatter that area of privacy which the dignity and liberty of human persons require to be kept apart as a haven for each citizen. Accordingly, the plaintiff says that any legislation which purports to do so is de facto inconsistent with the Constitution. Apart from this, however, the plaintiff has advanced other grounds of alleged inconsistency which must be considered. I propose in the first place to deal with these other grounds and then to return to what appears to be the plaintiff's main submission.
As already mentioned, the plaintiff argues that the impugned legislation is inconsistent with Article 40, s. 1, of the Constitution in that it discriminates against male citizens who are homosexual. I understand his complaint in this respect to be confined to the Act of 1885. In case I am incorrect in this respect, however, I would like to express the view that such an argument is scarcely entertainable in relation to the impugned sections of the Act of 1861. The act which constitutes buggery can only be committed by males. It is designated as a crime whether it is committed with a male or a female. It follows that the prohibition applies to the act irrespective of whether it is committed by a homosexual or by a heterosexual male. No discrimination could be involved.
As to gross indecency, however, the prohibition only applies to such conduct between males. Does the fact that it does not apply to gross indecency between females involve a discrimination which would be prohibited by Article 40, section 1? I do not think so. The legislature would be perfectly entitled to have regard to the difference between the sexes and to treat sexual conduct or gross indecency between males as requiring prohibition because of the social problem which it creates, while at the same time looking at sexual conduct between females as being not only different but as posing no such social problem. Furthermore, in alleging discrimination because the prohibition on the conduct which he claims he is entitled to engage in is not extended to similar conduct by females, the plaintiff is complaining of a situation which, if it did not exist or were remedied, would confer on him no benefit or vindicate no right of his which he claims to be breached. I do not think that such an argument should be entertained by this Court. For the same reasons, I would reject the plaintiff's complaint that there is discrimination in the fact that the laws of the State do not apply criminal sanctions to heterosexual conduct outside marriage between consenting adults.
The plaintiff has also submitted that the blanket prohibition of homosexual conduct effected by the legislation threatens his physical and mental health through frustration and disorientation arising from his congenital disposition. For this reason the plaintiff asserts that his right to bodily integrity is endangered. In my opinion this submission is not a sound one. If the legislation is otherwise valid and within the competence of the legislature to enact, it cannot be rendered inoperative merely because compliance with it by the plaintiff is difficult for, or harmful to, him due to his innate or congenital disposition. In this respect the exigencies of the common good must prevail. The plaintiff also alleges that this legislation and, in particular, s. 11 of the Act of 1885, impairs his rights of freedom of expression and freedom of association which are guaranteed by Article 40, s. 6, of the Constitution. I do not accept this submission. Freedom of expression and freedom of association are not guaranteed as absolute rights. They are protected by the Constitution subject to public order and morality Accordingly, if the impugned legislation is otherwise valid and consistent with the Constitution, the mere fact that it prohibits the plaintiff from advocating conduct which it prohibits or from encouraging others to engage in such conduct or associating with others for the purpose of so doing, cannot constitute a breach of the Constitution.
I now turn to what I have described as the core of the plaintiff's case. This is the claim that the impugned legislation constitutes an unwarranted interference with his private life and thereby infringes his right to privacy. This claim is based on the philosophical view, attributed to John Stuart Mill, that the law should not concern itself in the realm of private morality except to the extent necessary for the protection of public order and the guarding of citizens against injury or exploitation. It is a view which received significant endorsement in the report of the Wolfenden Committee on Homosexual Offences and Prostitution. That committee's report, furnished to the British Parliament in 1957, contained the following statement in support of its recommendation for limited decriminalisation:-
"There remains one additional counter argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice in action in matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality, which is, in brief and crude terms not the law's business. To say this is not to condone or encourage private immorality."
The Wolfenden Committee had been established by the Scottish Home Office and, although it recommended (in effect) the removal of criminal sanctions from homosexual conduct when carried out in private between adult responsible males, the British Parliament was very slow to accept that recommendation and to act upon it. It was not until the Sexual Offences Act, 1967 (which was introduced as a private member's bill) that the law was changed in England and Wales; in Scotland the change was not made until the passing of the Criminal Justice (Scotland) Act, 1980. In relation to Northern Ireland, the British Parliament declined to act until compelled to do so as a result of the recent decision of the European Court of Human Rights in Dudgeon v. United Kingdom (1981) 4 E.H.H.R. 149. The caution shown by successive British Governments and Parliaments is understandable because what was proposed was a significant reversal of legislative policy in an area in which deep religious and moral beliefs were involved.
From the earliest days, organised religion, regarded homosexual conduct, such as sodomy and associated acts with a deep revulsion as being contrary to the order of nature, a perversion of the biological functions of the sexual organs and an affront both to society and to Gods. With the advent of Christianity this view found clear expression in the teachings of St. Paul, and has been repeated over the centuries by the doctors and leaders of the Church in every land in which the Gospel of Christ has been preached. To-day, as appears from the evidence given in this case, this strict view is beginning to be questioned by individual Christian theologians but, nevertheless, as the learned trial judge said in his judgment, it remains, the teaching of all Christian Churches that homosexual acts are wrong.
In England, buggery was first treated as a crime by the statute 25 Hen. VIII c. 6, having been previously dealt with only in the ecclesiastical courts. In Ireland, it first received statutory condemnation in the statute of the Irish Parliament 10 Chas. I, sess. 2, c. 20. Subject to statutory changes as to punishment, it continued to be prohibited and punished as a crime in accordance with the provisions of the Act of 1861 which were complemented by the later provisions of the Act of 1885. While those statutory provisions have now been repealed in the entire of the United Kingdom, the question in this case is whether they ceased to operate in Ireland at the time of the enactment of the Constitution in 1937.
In the course of the trial of this action in the High Court, reference was made to the Wolfenden Report, to the Kinsey Survey on homosexual behaviour conducted in the United States arid to a similar survey conducted in Sweden. No such survey has been conducted in Ireland, but the trial judge on the evidence he heard, was prepared to conclude that there is probably a large number of people in this country with homosexual tendencies. Of these, however, only a small number are exclusively homosexual in the sense that their orientation is congenital and irreversible. It is this small group (of those with homosexual tendencies) who must look to the others for the kind of relationship, stable or promiscuous, which they seek and desire. It follows that the efforts and activities of the congenital must tend towards involving the homosexually orientated in more and more deviant sexual acts to such an extent that such involvement may become habitual The evidence in this case and the text-books produced as part thereof indicate how sad, lonely and harrowing the life of a person, who is or has become exclusively homosexual, is likely to be. Professor West in his work, Homosexuality Re-Examined, states at p. 318:- "Exclusive homosexuality forces a person into a minority group; cuts off all prospect of fulfilment through a family life with children and hampers participation in mainstream social activities which are mostly geared to the needs of heterosexual couples." He goes on to talk of those, whose life centres on short-term liaisons, as facing loneliness and frustration as they lose their sexual attractiveness with advancing age. Other authors, also referred to, indicate the instability of male homosexual relations, the high incidence of suicide attempts and the depressive reactions which frequently occur when a relationship ends (Harrison; Reid, Barrett & Hewer). These are some of the consequences which, experience has indicated, tend to follow on a lifestyle which is exclusively homosexual.
Apart from these sad consequences of exclusive homosexuality, unfortunately there are other problems thereby created which constitute a threat to public health. Professor West in his work already mentioned, which was published in a revised form in England over ten years after the decriminalisation of homosexual conduct, says at p. 228:- "Far from being immune from venereal infection, as many used to like to believe, male homosexuals run a particularly high risk of acquiring sexually transmitted diseases." The author goes on to show that in the post-decriminalisation decade in Britain many forms of venereal disease (syphilis, gonorrhea, urethritis and intestinal infection) have shown an alarming increase in males, and that this is attributable directly to the increase in homosexual activity and conduct. In relation to syphilis, the author gives this serious warning:- "A promiscuous homosexual with such a reservoir of infection can transmit the disease, in all innocence, to a whole sequence of victims before the carrier is discovered. The diagnosis at this stage is not always obvious, even when suspected, since blood tests for this infection do not usually become positive until some weeks after the primary chancre has appeared." He might well have added that, in the case of the novice or the new entrant into homosexual activity, reticence or shame might well delay further the tracing and discovery of the carrier.
Apart from these known consequences of fairly widespread homosexual behaviour and conduct, one other matter of particular importance should be noted. This is the effect of homosexual activity on marriage. It has to be accepted that, for the small percentage of males who are congenitally and irreversibly homosexual, marriage is not open or possible. They must seek such partnerships as they can amongst those whose orientation disposes them to homosexual overtures. But for those so disposed or orientated, but not yet committed, what effect will the acceptance of such overtures be likely to have on marriage? Again, precise information in relation to Ireland is not available. One can only look to what the Wolfenden Committee said in its report (para. 55) before the changes in the law occurred in the United Kingdom:- "The second contention, that homosexual behaviour between males has a damaging effect on family life, may well be true. Indeed we have had evidence that it often is: cases in which homosexual behaviour on the part of the husband has broken up a marriage are by no means rare, and there are also cases in which a man in whom the homosexual component is relatively weak, nevertheless, derives such satisfaction from homosexual outlets that he does not enter upon a marriage which might have been successfully and happily consummated. We deplore this damage to what we regard as the basic unit of society."
That view was based on the limited experience available to the Committee prior to any changes in the law. It indicates, however, that homosexual activity and its encouragement may not be consistent with respect and regard for marriage as an institution. I would not think it unreasonable to conclude that an open and general increase in homosexual activity in any society must have serious consequences of a harmful nature so far as marriage is concerned.
I have been speaking of homosexuality and of its possible consequences in accordance with what, in my view, can be gathered from the evidence in this case. What I have said can be summarised as follows.
(1) Homosexuality has always been condemned in Christian teaching as being morally wrong. It has equally been regarded by society for many centuries as an offence against nature and a very serious crime.
(2) Exclusive homosexuality, whether the condition be congenital or acquired, can result in great distress and unhappiness for the individual and can lead to depression, despair and suicide.
(3) The homosexually orientated can be importuned into a homosexual lifestyle which can become habitual.
(4) Male homosexual conduct has resulted, in other countries, in the spread of all forms of venereal disease and this has now become a significant public-health problem in England.
(5) Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution.
In the United Kingdom the decisive factor in bringing about decriminalisation of homosexuality was the acceptance of the view advocated by the Wolfenden Committee, and repeated in this case by the plaintiff, that
homosexuality was concerned only with private morality and that the law had no business in entering into that field. Whether such a view can be accepted in Ireland depends not on what was done by a sovereign parliament in the United Kingdom but on what our Constitution ordains and requires.
The preamble to the Constitution proudly asserts the existence of God in the Most Holy Trinity and recites that the people of Ireland humbly acknowledge their obligation to "our Divine Lord, Jesus Christ." It cannot be doubted that the people, so asserting and acknowledging their obligations to our Divine Lord Jesus Christ, were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs. Yet it is suggested that, in the very act of so doing, the people rendered inoperative laws which had existed for hundreds of years prohibiting unnatural sexual conduct which Christian teaching held to be gravely sinful. It would require very clear and express provisions in the Constitution itself to convince me that such took place. When one considers that the conduct in question had been condemned consistently in the name of Christ for almost two thousand years and, at the time of the enactment of the Constitution, was prohibited as criminal by the laws in force in England, Wales, Scotland and Northern Ireland, the suggestion becomes more incomprehensible and difficult of acceptance.
But the plaintiff says that the continued operation of such laws was inconsistent with a right of privacy which he enjoys. Here, in so far as the law and the State are concerned, he asserts a "no go area" in the field of private morality. I do not accept this view either as a general philosophical proposition concerning the purpose of law or as having particular reference to a right of privacy under our Constitution. I regard the State as having an interest in the general moral well being of the community and as being entitled, where it is practicable to do so, to discourage conduct which is morally wrong and harmful to a way of life and to values which the State wishes to protect
A right of privacy or, as it has been put, a right "to be let alone" can never be absolute. There are many acts done in private which the State is entitled to condemn, whether such be done by an individual on his own or with another. The law has always condemned abortion, incest, suicide attempts, suicide pacts, euthanasia or mercy killing. These are prohibited simply because they are morally wrong and regardless of the fact, which may exist in some instances, that no harm or injury to others is involved. With homosexual conduct, the matter is not so simple or clear. Such conduct is, of course, morally wrong, and has been so regarded by mankind through the centuries. It cannot be said of it, however, as the plaintiff seeks to say, that no harm is done if it is conducted in private by consenting males. Very serious harm may in fact he involved. Such conduct, although carried on with full consent, may lead a mildly homosexually orientated person into a way of life from which he may never recover. As already indicated, known consequences are frustration, loneliness arid even suicide. In addition, it is clearly established that an increase in the practice of homosexuality amongst males increases the incidence of all forms of venereal disease, including the incapacitating and often fatal disease of syphilis. Surely, in the light of such possible consequences, no one could regard with equanimity the freeing of such conduct from all legal restraints with the certain result that it would increase and its known devotees multiply. These, however, are not the only considerations.
There is the effect of homosexuality on marriage. As long ago as 1957 the Wolfenden Committee acknowledged, in relation to Great Britain, the serious harm such conduct caused to marriage not only in turning men away from it as a partnership in life but also in breaking up existing marriages. That was the conclusion reached as to the state of facts before the criminal sanctions were removed. One can only suspect that, with the removal of such sanctions and with the encouragement thereby given to homosexual conduct, considerably more harm must have been caused in Great Britain to marriage as an institution. In Ireland, in this respect, the State has a particular duty. Article 41. s. 3, sub-s. 1, of the Constitution provides:- "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack." Surely, a law which prohibits acts and conduct by male citizens of a kind known to he particularly harmful to the institution of marriage cannot be regarded as inconsistent with a Constitution containing such a provision.
On the ground of the Christian nature of our State and on the grounds that the deliberate practice of homosexuality is morally wrong, that it is damaging to the health both of individuals and the public and, finally, that it is potentially harmful to the institution of marriage, I can find no inconsistency with the Constitution in the laws which make such conduct criminal. It follows, in my view, that no right of privacy, as claimed by the plaintiff, can prevail against the operation of such criminal sanctions.
One other argument has been advanced on behalf of the plaintiff by Mrs. Robinson. This was based on the Convention for the Protection of Human Rights and Fundamental Freedoms which was signed at Rome on the 4th November, 1950, and was confirmed and ratified by the Government on the 18th February, 1953. This Convention specifies rights and freedoms for the citizens and subscribing countries, broadly similar to the rights and freedoms enjoyed by the citizens of Ireland under the laws and the Constitution. In particular, article 8 of the Convention provides as follows:-
"1. Everyone has the right to respect for his private and family life his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Recently the European Court of Human Rights, which is the appropriate body to do so under the Convention, interpreted this article 8 on a complaint by Jeffrey Dudgeon, a citizen of Northern Ireland, that the legislation impugned in this action, which was then in force in Northern Ireland, interfered with his rights as a homosexual. By a majority verdict the European Court held that it did so and that, accordingly, ss. 61 and 62 of the Offences Against the Person Act, 1861 and s. 11 of the Criminal Law Amendment Act, 1885, were inconsistent with the observance of article 8 of the Convention.
Mrs. Robinson has argued that this decision by the European Court of Human Rights should be regarded by this Court as something more than a persuasive precedent and should be followed. She contends that, since Ireland confirmed and ratified the Convention, there arises a presumption that the Constitution is compatible with the Convention and that, in considering a question as to inconsistency under Article 50 of the Constitution, regard should be had to whether the laws being considered are consistent with the Convention itself. While I appreciate the clarity of her submission, I must reject it in my view, acceptance of Mrs. Robinson's submission would be contrary to the provisions of the Constitution itself and would accord to the Government the power, by an executive act, to change both the Constitution and the law. The Convention is an international agreement to which Ireland is a subscribing party. As such, however, it does not and cannot form part of our domestic law nor affect in any way questions which arise thereunder. This is made quite clear by Article 29, s. 6, of the Constitution which declares:- "No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas."
A similar contention was put before the former Supreme Court in In re Ó Laighléis [1960] I.R. 93 and was rejected. In the course of his judgment in that case, Maguire C.J. said at p. 125 of the report:-
"The Oireachtas has not determined that the Convention of Human Rights and Fundamental Freedoms is to be part of the domestic law of the State, and accordingly this Court cannot give effect to the Convention if it be contrary to domestic law or purports to grant rights or impose obligations additional to those of domestic law.
No argument can prevail against the express command of section 6 of Article 29 of the Constitution before judges whose declared duty it is to uphold the Constitution and the laws.
The Court accordingly cannot accept the idea that the primacy of domestic legislation is displaced by the State becoming a party to the Convention for the Protection of Human Rights and Fundamental Freedoms. Nor can the Court accede to the view that in the domestic forum the Executive is in any way estopped from relying on the domestic law. It may be that such estoppel might operate as between the High Contracting Parties to the Convention, or in the court contemplated by Section IV of the Convention if it comes into existence, but it cannot operate in a domestic Court administering domestic law. Nor can the Court accept the contention that the Act of 1940 is to be construed in the light of, and so as to produce conformity with, a Convention entered into ten years afterwards."
I agree with those views expressed by the former Chief Justice.
For these reasons, I cannot accept Mrs. Robinson's argument. Neither the Convention on Human Rights nor the decision of the European Court in Dudgeon v. United Kingdom (1981) 4 E.H.H.R. 149 is in any way relevant to the question which we have to consider in this case.
For the reasons set out in this judgment, I have come to the conclusion that the plaintiff is not entitled to the relief he claims and that this appeal should be dismissed.
Judgment of Finlay P. delivered 22nd of April, 1983
I agree with the judgment of the Chief Justice and I have nothing further to add to it.
Judgment of Henchy J. delivered 22nd of April, 1983
The plaintiff is homosexual in nature to the extent that his sexuality is compulsively and exclusively directed towards members of his own sex. The present state of scientific insight into homosexuality precludes any firm conclusion as to why his particular sexual status was so formed, or any scientifically viable expectation that his exclusively homosexual orientation can be wholly or partly diverted into heterosexuality. What appears clear from the evidence is that his sexual condition was predestined from birth or from childhood rather than adopted by choice, and that the future holds no real hope that any interpersonal sexual conduct in which he may engage will he other than homosexual. Such is the plaintiff who seeks in this action to have the impugned sections expunged from our statute law on the ground that they are so irreconcilable with his personal rights under the Constitution that they cannot be said to have been carried forward into the post-Constitution era and to have been stamped with constitutional validity under Article 50 of the Constitution.
The particular personal circumstances of the plaintiff in the context of his claim are crucial for two reasons. First, to determine whether he has the standing necessary in the eyes of the law to enable him to allege
unconstitutionality in the challenged sections. Secondly, even if he has that standing, to decide whether the challenged sections are so inimical to his personal human rights under the Constitution that, weighed against other and more generalised considerations expressed in or postulated by the Constitution, the scale of constitutional values and priorities should be said to preponderate in his favour.
As to the plaintiff's locus standi, I entertain no doubt that he is qualified to bring the present proceedings. In fact, in the amended defence delivered by the Attorney General the only plea made in this respect was that the plaintiff had no locus standi to allege that ss. 61 and 62 of the Offences Against the Person Act, 1861, are an unconstitutional invasion of the privacy of marriage. On that plea, I would hold with the Attorney General. It is inherent in the plaintiff's case that, as an irremediably exclusive homosexual, he will never marry. Therefore, he has no standing to argue what would in this case be abstract constitutional rights of married couples: see Cahill v. Sutton [1980] I.R. 269 at p. 283 of the report. But, as an unmarried male homosexual, the impact of the impugned statutory provisions on his personal life is so real and so palpably deleterious to his well-being that he has no difficulty in coming within the general rule as to standing, which was stated as follows in Cahill v. Sutton [1980] I.R. 269 at p. 286 of the report:-
"The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he is deemed by the court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person's interests have been adversely affected, or stand in real or imminent danger of being adversely affected, by the operation of the statute."
In this case the clear evidence of the ever-present risk of prosecution, conviction and punishment, and of the many other real or imminent risks that beset the plaintiff's life because of the effect on him of the impugned provisions, marks this case as virtually a classical example of an attack on the constitutionality of statutory provisions at the hands of a litigant who has unanswerable qualifications to mount such an attack. Apart from that, however, the trial judge has held that the plaintiff had locus standi to the extent I have indicated and the Attorney General has not appealed against that finding.
The second reason for focusing on the facts of the plaintiff's personal predicament is for the purpose of determining whether the impact of the impugned statutory provisions on his life discloses an incompatibility between those provisions and the rights which the Constitution must be held to have vested in him.
Notwithstanding the submission of the plaintiff's counsel to the contrary, the constitutional question that calls for resolution is unaffected by the fact that the precise statutory provisions in question in this case were held by the European Court of Human Rights in Dudgeon v. United Kingdom (1981) 4 E.H.H.R. 149 to be in breach of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. That Convention, as has been held by this Court, although it has by its terms a binding force on the Government of this State as one of its signatories, forms no part of the domestic law of this State. Moreover, article 8 of the Convention has no counterpart in our Constitution. Since the constitutionality of the impugned statutory provisions is the only issue raised in this litigation, the touchstone of constitutionality must be held to reside solely in our Constitution. That does not mean that this Court is not open to the persuasive influence that may be drawn from decisions of other courts, such as the European Court of Human Rights, which deal with problems similar or analogous to that now before us. At the end of the day, subject to such influences or methods as are inherent in the judicial process, the task of the Court is to determine the actual and potential effects on the plaintiff of the impugned statutory provisions and then, having viewed those effects in the light of the invoked constitutional protections in their present-day connotation and in the context of the Constitution as a whole, to decide whether there is a repugnancy between what the statutory provisions have prejudicially done to the plaintiff and what the constitutional provisions intended him to be protected against. If such repugnancy is found to exist, the challenged statutory provisions cannot be adjudged to have survived the enactment of the Constitution.
It is not necessary to catalogue in detail the many, and mainly uncontroverted, complaints made by the plaintiff of denigratory and hurtful treatment meted out to him because of his particular sexual orientation. For example, he has been physically attacked; he has suffered verbal abuse; fear of prosecution or of social obloquy has restricted him in his social and other relations with male colleagues and friends; and in a number of subtle but insidiously intrusive and wounding ways he has been restricted in, or thwarted from, engaging in activities which heterosexuals take for granted as aspects of the necessary expression of their human personality and as ordinary incidents of their citizenship.
It is not surprising that the repressive and constricting treatment suffered by the plaintiff affected his psychological health. As an involuntary, chronic and irreversible male homosexual he has been cast unwillingly in a role of furtive living, which has involved traumatic feelings of guilt, shame, ridicule and harassment and countless risks to his career as a university lecturer and to his social life generally. Those risks are not the normal lot of the fornicator, the adulterer, the sexually deviant married couple, the drunkard, the habitual gambler, the practising lesbian, and the many other types of people whose propensities or behaviour may be thought to be no less inimical to the upholding of individual moral conduct, or to necessary or desirable standards of public order or morality, or to the needs of a healthy family life, or to social justice, or to other expressed or implied desiderata of the Constitution.
A stage was reached when the plaintiff, because of what he was suffering as a result of his homosexuality, was referred to one of Dublin's leading consultant psychiatrists. After nine months of psychotherapy the psychiatrist advised the plaintiff that, in the interests of his mental and psychological health, he should consider emigrating to a country, such as England or France, where the law takes a more liberal attitude to male homosexuals. He decided to reject this advice and to continue to live here – a decision which, according to his evidence, had the effect of transforming, to a limited extent, his fear into indignation. His subsequent public espousal of the cause of male homosexuals in this State may be thought to be tinged with a degree of that affected braggadocio which is said by some to distinguish a "gay" from a mere homosexual.
Before entering on the precise question of unconstitutionality on which this appeal turns, I should like to point out that we are not called upon in this case to express an opinion upon whether the law on this topic should be as it is or upon what the purpose of the law should be. Such considerations are for moral philosophers, legal theorists, lawmakers and the like. In a case such as the present, where the legal materials we are considering are written instruments (i.e., statutory provisions on the one hand and overriding constitutional provisions on the other) and are not amenable to the judicial development or extension which would be the case in regard to unwritten or case law, we must take those legal materials as we find them. The judicial function in a case such as this is to lay the impugned statutory provisions down beside the invoked constitutional provisions and if, in the light of the established or admitted facts, a comparison between the two sets of provisions shows a repugnancy, the statutory provisions must be struck down either wholly or in part – if the test of severability laid down at p. 147 of the report of Maher v. The Attorney General [1973] I.R. 140 is applicable.
The first constitutional provision that is said to be violated by the impugned sections is Article 40, section 1. It is argued that the equality before the law thereby guaranteed is not given effect to when, as is the case, homosexual acts between male homosexuals are made criminal, while homosexual acts between female homosexuals, or deviant sexual acts (such as buggery) between married couples which would generally be considered debased and immoral, are left outside the purview of the criminal law, at least in regard to wives and when committed in private. I am unable to accept this argument. I think it implies an over-wide interpretation of the scope of that constitutional guarantee. It would be a different matter if an unwarranted discrimination had been made between males in respect of the offences dealt with by the impugned sections. But such is not the case. What the sections have done is to make certain conduct between males criminal, while leaving unaffected by the criminal law comparable conduct when not committed exclusively by males. Therein lies the reason why in my view unconstitutional discrimination under Article 40, s. 1, has not been shown. The sexual acts left unaffected are for physiological, social and other reasons capable of being differentiated as to their nature, their context, the range of their possible consequences and the desirability of seeking to enforce their proscription as crimes. While individual opinions on the matter may differ, it was and is a matter of legislative policy to decide whether a compulsion of the common good is capable of justifying the distinction drawn. I would hold that the proviso contained in the second sentence of Article 40, s. 1, makes constitutionally acceptable under that Article the line of demarcation between the acts made criminal by the impugned sections and those which the plaintiff complains are left unproscribed by the criminal law.
The second, indeed, the main ground on which it is submitted that the impugned statutory provisions are unconstitutional is that they violate an essential component of the plaintiff's right of privacy. That a right of privacy inheres in each citizen by virtue of his human personality, and that such right is constitutionally guaranteed as one of the unspecified personal rights comprehended by Article 40, s. 3, are propositions that are well attested by previous decisions of this Court. What requires to be decided – and this seems to me to be the essence of this case – is whether that right of privacy, construed in the context of the Constitution as a whole and given its true evaluation or standing in the hierarchy of constitutional priorities, excludes as constitutionally inconsistent the impugned statutory provisions.
Having regard to the purposive Christian ethos of the Constitution, particularly as set out in the preamble ("to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations"), to the denomination of the State as "sovereign, independent, democratic" in Article 5, and to the recognition, expressly or by necessary implication, of particular personal rights, such recognition being frequently hedged in by overriding requirements such as "public order and morality" or "the authority of the State" or "the exigencies of the common good", there is necessarily given to the citizen, within the required social, political and moral framework, such a range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual in the type of society envisaged. The essence of those rights is that they inhere in the individual personality of the citizen in his capacity as a vital human component of the social, political and moral order posited by the Constitution.
Amongst those basic personal rights is a complex of rights which vary in nature, purpose and range (each necessarily being a facet of the citizen's core of individuality within the constitutional order) and which may be compendiously referred to as the right of privacy. An express recognition of such a right is the guarantee in Article 16, s. 1, sub-s. 4, that voting in elections for Dáil Éireann shall be by secret ballot. A constitutional right to marital privacy was recognized and implemented by this Court in McGee v. The Attorney General[1974] IR 284; the right there claimed and recognized being, in effect, the right of a married woman to use contraceptives, which is something which at present is declared to be morally wrong according to the official teaching of the Church to which about 95% of the citizens belong. There are many other aspects of the right of privacy, some yet to be given judicial recognition. It is unnecessary for the purpose of this case to explore them. It is sufficient to say that they would all appear to fall within a secluded area of activity or non-activity which may be claimed as necessary for the expression of an individual personality, for purposes not always necessarily moral or commendable, but meriting recognition in circumstances which do not engender considerations such as State security, public order or morality, or other essential components of the common good.
Put in specific terms, the central issue in this case is whether the plaintiff's claim to be entitled to engage in homosexual acts in private must give way to the right and duty of the State to uphold considerations of public order and morality. In my opinion the legal test by which that issue should be determined is this: where, as in this case, a pre-Constitution legislature has condemned as criminal all homosexual acts between males (ranging from acts of gross indecency, the commission of which does not require even physical contact, to acts of sodomy) and thereby blights and thwarts in a variety of ways the life of a person who is by nature incapable of giving expression to his sexuality except by homosexual acts, and who wishes to be entitled to do so consensually in private, on the Attorney General, representing the State, if he is to defeat the individual's claim, to show that to allow him that degree of privacy would be inconsistent with the maintenance of public order and morality.
In my judgment the Attorney General has signally failed to discharge that onus. In the High Court, ten witnesses were called, all on behalf of the plaintiff. Although homosexual acts in private between consenting adults have largely ceased to be criminal in England and Wales since 1967; although in most European countries for many years the legal position has been no less liberal; although a similar degree of decriminalisation has been in force for varying periods in different jurisdictions throughout the world, including some 20 or so States in the United States of America; and although there have been many studies by experts of the social, religious and other effects of such decriminalisation; not a single witness was called by the Attorney General to rebut the plaintiff's case that the degree of decriminalisation sought by him posed no real threat to public order or morality. On the contrary, the consensus of the evidence given was that the beneficial effects, both in terms of individual fulfilment of personality and of the social, political and religious mores of the community, that would flow from a relaxation of the impugned provisions would outweigh any possible ill-effects on society as a whole.
I hope to support that conclusion not by eclectic excerpts from the evidence but by answers which epitomise the general tenor of the particular witnesses.
Of the ten witnesses called for the plaintiff, I leave out of consideration the plaintiff and Edmund Lynch, the research director of the National Gay Federation, on the ground that their opinions represent a vested interest in the outcome of this case.
Of the two Irish psychiatrists who were called as witnesses, Dr. McCracken confined his evidence to the advice he had given to the plaintiff as his patient; that advice being that the plaintiff should consider emigrating to a country where laxer laws dealing with homosexual acts would be more conducive to his psychological and mental well-being. The other Irish psychiatrist, Professor Ivor Browne, the chief psychiatrist to the Eastern Health Board, gave it as his considered opinion, from a study of the psychiatric problems of confirmed and exclusively homosexual men, that the impugned statutory provisions exacerbate their fears, their loneliness, their sense of alienation and the feelings of emotional and physical deprivation from which they suffer if they seek to conform to the existing restrictions of the criminal law; and that attempts to prohibit or divert the pursuit of their instinctive and inescapable sexual urges by means of legal constraints or psycho-therapeutical methods, are undesirable, counterproductive and tend to produce a furtive way of life which may explain, at least in part, the high incidence of venereal diseases among male homosexuals. His experience in England was that the relaxation of the criminal restrictions on homosexual acts between consenting adult males, as effected by the Sexual Offences Act, 1967, cannot be proved to have caused a deterioration of general moral standards or to have resulted in any increase in the prevalence of homosexuality.
A Mrs. Robertson, who in 1970 formed in England an organisation called Parents Inquiry, designed to enable young homosexual men to come to terms with their families about their homosexuality, gave it as her opinion that, while there are differing Christian views of the morality of homosexual acts, it is desirable that those compulsively drawn by their sexual orientation to such acts should not be criminally or morally condemned, but should be given such counselling and other services as will enable them to come to reasonable terms with their families and with society generally: an achievement which, in her opinion, is made particularly difficult in this State because of the harshness of the criminal law.
Perhaps the most prestigious witness in this particular field of homosexual studies was Professor D.J. West, an eminent psychiatrist and Professor of Clinical Criminology in Cambridge University, whose book (Homosexuality Re-Examined) has gone through a number of editions and has won wide acclaim as a balanced and incisive study of the problems of homosexuality. While it is not possible to give in abbreviated form the many pertinent opinions expressed by him, it is sufficient for present purposes to point out that, from his researches, observations and his study of the relevant literature, he has come to the conclusion that the introduction by the Sexual Offences Act, 1967, of a wide measure of freedom from prosecution in respect of homosexual acts in private between consenting adult males has not contributed appreciably to an increased instability of family life, does not appear to have led to a proliferation of homosexuality among males, has not adversely affected the moral or physical health or well-being of society in general, has led to a normative climate of opinion in which irreversible homosexuals have a better chance of leading private lives attuned to their basic human needs, and that the prejudicial effects on compulsive homosexuals of the impugned statutory provisions are an undesirable consequence which is not necessary for the maintenance of public order or morality or for any other public or societal purpose. It is only fair to say that Professor West admitted to a lack of familiarity with the social and other considerations affecting homosexuality in Ireland.
The next witness called for the plaintiff was a distinguished American social psychiatrist, Professor John P. Spiegel, a former president of the American Psychiatric Association. He gave it as his conclusion, from his personal researches and from a consideration of the relevant literature, that in jurisdictions where the absoluteness of the prohibitions contained in the impugned statutory provisions has been relaxed, prejudice and discrimination against homosexuals have abated, homosexuals have tended more to come forward for counselling or other therapy, the incidence of psychiatric disorders amongst homosexuals seems to have decreased, the lives of obligatory homosexuals have generally been eased and their fears of social degradation, blackmail and personal inferiority lessened; and he rejected the "infection theory", namely, that relaxed homosexual laws are conducive to a spread of homosexual practices.
The Irish experience of the effect of the impugned laws was most fully dealt with in evidence by Fr. Michael MacGreil S.J., Lecturer in Sociology in St. Patrick's College, Maynooth. His evidence is impressive not simply because of his qualifications in theology and sociology but also because he is the author of Prejudice and Tolerance in Ireland, which is a book based on a survey of intergroup attitudes of Dublin adults and other sources. The exhaustive inquiries made and interviews conducted by him and his collaborators for the purpose of that book gave Fr. MacGreil a unique qualification to pronounce both on the social and moral impact of the impugned laws and on the likely effect on our society of a relaxation of them. Referring to himself as being a conservative but tolerant Christian moralist, and conceding that homosexual acts between males would be deemed morally wrong by most of the citizens of this State, he gave the following two answers to the posed questions:-
"Q. As somebody who has made a special study of prejudice and tolerance, my question was: as a sociologist, would you think it would be a good thing for Irish society if there were a higher level of tolerance – perhaps if there were a future survey of attitudes towards homosexuals in Ireland?
A. I will answer this question directly. I think that at present, partially because of the law but not only because of it but because of the attitudes as well, homosexuals are a discriminated against minority and I would like to see them being decriminalised and hopefully the attitudes of the people would become more tolerant. Now, that is not to be taken to mean that I personally agree with homosexual behaviour. In fact, I stand by the Catholic Church's teaching that continence, heterosexually and homosexually, is the norm outside of marriage, but that is on the moral issue which I think is quite a different question, but I do think that as a minority they merit the decriminalisation of their status.
Q. Does that mean that in this area you do not see any conflict between this disapproving from a moral point of view and decriminalisation?
A. No."
The two remaining witnesses were theologians, a Fr. Joseph O'Leary, a Catholic priest with a number of academic qualifications including a doctorate in theology, and Archdeacon Warke of the Church of Ireland. Like Fr. MacGreil, they assumed the necessity under the Constitution of a pluralist society in order to give true effect to the postulates of the Constitution, and they considered the impugned statutory provisions to be too draconian and restrictive to enable the minority who are obligatory homosexuals to achieve the level of necessary self-expression appropriate to their personality, socially dissident though they may be, and notwithstanding that their sexual conduct may not qualify for moral approval in the eyes of orthodox Christian moralists. Recognizing that law and morality are not severable, indeed that there must be an interdependence between them, that while the end of law is not the enforcement of morality or the proscription of immorality, both witnesses were at one in concluding that legal restraints, particularly those compounded by criminal sanctions for their breach, are justified only when the common good requires them. They were in agreement that the impugned laws were not only unnecessary for the common good but were positively at variance with the elements of prudence, justice, charity, tolerance, social justice, fairness and the other attributes inherent under the Constitution in the concept of the common good. I give a single answer from the evidence of each as epitomising their conclusions. Fr. O'Leary's direct examination concluded as follows:-
"Q. Finally, in your opinion as a Catholic theologian, is the present law criminalising homosexual acts necessary to sustain and enhance the Christian nature of the State?
A. Quite the contrary. I would think that it is not only not necessary but positively harmful to the Christian nature of the State in that it accentuates or increases the difficulties of homosexual men and women, boys and girls, difficulties which not because of sexual propensity itself but because of isolation and misunderstanding have in many cases led to mental breakdown."
Also at the end of his direct examination, we find Archdeacon Warke summarising his conclusions in the
following two answers:-
"Q. In your opinion would the continuance of those laws [i.e., the impugned sections] sustain or reinforce the Christian concept of this State?
A. I would say that in so far as the basic criteria for a Christian concept of society is love and charity, I would say that they show a lack of love and a lack of charity towards the homosexual.
Q. And to that extent are unchristian?
A. I would say so."
The foregoing summary is no doubt an over-compressed version of the evidence given, and to that extent it probably does not reproduce many of the nuances and subtleties of the opinions expressed. But it is an indisputable fact that the evidence of all ten witnesses condemned, in one degree or another, and for a variety of reasons, the impugned sections for being repugnant to the essential human needs of compulsive or obligatory homosexuals and as not being required by – indeed, as being inconsistent with – public order and morality or any of the other attributes comprehended by the constitutional concept of the common good.
In response to this massive and virtually unanimous volume of evidence, given almost entirely by experts in sociology, theology and psychiatry, the Attorney General adduced no oral evidence whatsoever. If the matters pleaded by him in his defence were susceptible of proof, at least to the extent of disproving or casting doubt on the conclusions expressed by the plaintiff and his witnesses, it would have been well within the resources and competence of the State to adduce such evidence. But the hearing in the High Court is notable for the total absence of controverting evidence. True, efforts were made in cross-examination to get witnesses to accept contrary opinions that were said to have been expressed in the writings or pronouncements of other experts or authorities. But a close study of the evidence shows that the largely unanimous conclusions expressed on oath were essentially as I have summarised them and that they stood uncontroverted at the end of the hearing of the evidence.
What choice, then, was open to the trial judge? In my opinion, since this was an oral hearing an oath carried out under our adversary system (which is based on the determination, from sworn testimony, according to the required onus and level of proof of the relevant issues), where the outcome of the case depended on a judicial conclusion from the actual or potential effect on our society of specified statutory provisions or of their alternatives, when the conclusions expressed overwhelmingly supported the plaintiff's case, the trial judge was bound in law to reject the Attorney General's defence and to uphold, at least in part, the plaintiff's case. The decision of this Court in Northern Bank Finance v. Charlton [1979] I.R. 179 shows that, if the judge had found the factual conclusions in accordance with the plaintiff's uncontroverted evidence, his findings could not be overturned on an appeal to this Court.
In the course of his judgment the judge said that what he had to decide was ". . . whether there are grounds on which the legislature, under current social conditions and having regard to the prevailing ideas and concepts of morality and the current knowledge of matters affecting public health etc., could now reasonably come to the conclusion that the acts declared unlawful are such as ought to be prohibited for the attainment of the true social order mentioned in the preamble, the implementation of the principles of social policy directed by Article 45 and the preservation of the public order and morality mentioned in Article 40 of the Constitution." Assuming that to be a correct statement of the foundation on which the case fell to be decided, it was not open to the judge to disregard the consensus of the sworn testimony before him and, in the absence of any sworn evidence to the contrary, and relying presumably on suggestions made in the course of cross-examination and on his own intuition, to reach the conclusion that the impugned provisions, if now enacted would, regardless of their impact on the plaintiff and on those in like case, be constitutionally justifiable.
The question whether the constitutional provisions he relied on gave the necessary justification depended on a complex of expert evidential considerations – social, moral, medical and others – and, since the unrebutted consensus of the evidence was against the existence of such justification, the judge was debarred from holding otherwise. The position would be quite different if the Attorney General had chosen to present evidence to the contrary. But he decided not to, although it appears from the cross-examination that such evidence was available. As was made clear by the decision of this Court in Ryan v. The Attorney General [1965] IR 294, where a constitutional challenge depends on expert opinion about the actual or potential effect of questioned statutory provisions, the constitutional point must be ruled on the basis of the facts or opinions as admitted to be correct or as duly found by the judge from the evidence given. Where the evidence given is entirely to one effect, it cannot be rejected.
The learned judge (who dealt with this difficult case with commendable thoroughness), in substituting his own conclusions on the personal and societal effects of the questioned provisions, seems to have laid undue stress on the fact that the prohibited acts, especially sodomy, are contrary to the standards of morality advocated by the Christian Churches in this State. With respect, I do not think that should be treated as a guiding consideration. What are known as the seven deadly sins are anathematised as immoral by all the Christian Churches, and it would have to be conceded that they are capable, in different degrees and in certain contexts, of undermining vital aspects of the common good. Yet it would be neither constitutionally permissible nor otherwise desirable to seek by criminal sanctions to legislate their commission out of existence in all possible circumstances. To do so would upset the necessary balance which the Constitution posits between the common good and the dignity and freedom of the individual. What is deemed necessary to his dignity and freedom by one man may be abhorred by another as an exercise in immorality. The pluralism necessary for the preservation of constitutional requirements in the Christian, democratic State envisaged by the Constitution means that the sanctions of the criminal law may be attached to immoral acts only when the common good requires their proscription as crimes. As the most eminent theologians have conceded, the removal of the sanction of the criminal law from an immoral act does not necessarily imply an approval or condonation of that act. Here the consensus of the evidence was that the sweep of the criminal prohibition contained in the questioned provisions goes beyond the requirements of the common good; indeed, in the opinion of most of the witnesses it is inimical to the common good. Consequently, a finding of unconstitutionality was inescapable on the evidence.
Having given careful consideration to all the evidence, I find that the essence of the unconstitutionality claimed lies not in the prohibition, as a crime, of homosexual acts between consenting adult males but primarily in making that prohibition apply without qualification to consenting adult males who are exclusively and obligatorily homosexual. The combined effect of the questioned sections is to condemn such persons, who are destined by nature to be incapable of giving interpersonal outlet to their sexuality otherwise than by means of homosexual acts, to make the stark and (for them) inhumane choice between opting for total unequivocal sexual continence (because guilt for gross indecency may result from equivocal acts) and yielding to their primal sexual urges and thereby either committing a serious crime or leaving themselves open to objectionable and harmful intrusion by those who would wish to prevent such acts, or to intolerance, harassment, blackmail and other forms of cruelty at the hands of those who would batten on the revulsion that such acts elicit in most heterosexuals.
One way or the other, the impugned provisions seem doomed to extinction. Whether they be struck down by this Court for being unconstitutional or whether they be deemed invalid elsewhere in accordance with the decision in Dudgeon v. United Kingdom (1981) 4 E.H.H.R. 149 (for being in contravention of the European Convention for the Protection of Human Rights and Fundamental Freedoms) they will require to be replaced with appropriate statutory provisions. It would not be constitutional to decriminalise all homosexual acts, any more than it would be constitutional to decriminalise all heterosexual acts. Public order and morality; the protection of the young, of the weak-willed, of those who may readily be subject to undue influence, and of others who should be deemed to be in need of protection; the maintenance inviolate of the family as the natural primary and fundamental unit of society; the upholding of the institution of marriage; the requirements of public health; these and other aspects of the common good require that homosexual acts be made criminal in many circumstances. The true and justifiable gravamen of the complaint against the sections under review is that they are in constitutional error for overreach or overbreadth. They lack necessary discrimination and precision as to when and how they are to apply.
The opinion expressed by some of the witnesses in the High Court that homosexual acts in private should he decriminalised must not be taken literally. Indeed it is likely that most, if not all, of the witnesses who gave that opinion would wish, on mature consideration, to qualify it. Even the liberalising Sexual Offences Act, 1967, which was passed in England in consequence of the Wolfenden Report, makes extensive exceptions (e.g., in respect of members of the armed services, in respect of acts committed on merchant ships, and because of limitations imposed by the nature of the statutory definitions) to the immunity from prosecution granted. Similar restricting limitations have been inserted in the Homosexual Offences (Northern Ireland) Order, 1982, which was enacted for the purpose of removing the incongruity in that jurisdiction between the now-impugned statutory provisions and the European Convention, as found in the Dudgeon decision.
I make reference to these matters to indicate that, despite my finding of unconstitutionality in the impugned sections on the ground that by their overreach and lack of precision and of due discrimination, they trench on an area of personal intimacy and seclusion which requires to be treated as inviolate for the expression of those primal urges, functions and aspirations which are integral to the human condition of certain kinds of homosexuals; save in circumstances when the common good requires otherwise, the Constitution leaves a wide range of choice to the Oireachtas in framing a law in place of the questioned provisions. Not only will the Oireachtas be empowered to make homosexual acts criminal but, for the purpose of upholding the requirements of the common good in its full constitutional connotation, it will be necessary for such legislation to hedge in such immunity from criminal sanctions as it may think fit to confer (on acts of a homosexual nature in private between consenting adults) with appropriate definitions of adulthood, consent and privacy and with such exceptions relating to prostitution, immoral exploitation, publicity, drug abuse, commercialisation, family relationships and such other matters or areas of exception as the Oireachtas may justifiably consider necessary for the preservation of public order and decency.
I would allow this appeal, thereby holding that (references to bestiality in the impugned sections being outside the range of this litigation) ss. 61 and 62 of the Offences Against the Person Act, 1861, and s. 11 of the Criminal Law Amendment Act, 1885, are inconsistent with the Constitution and were not continued in force or effect by Article 50 of the Constitution.
Judgment of Griffin J. delivered 22nd of April, 1983
I also agree with the judgment which has been delivered by the Chief Justice.
Judgment of McCarthy J. delivered 22nd of April, 1983
The facts underlying the constitutional questions raised in this appeal are fully set out in the judgments of the Chief Justice and Mr. Justice Henchy. The direct physical and psychiatric effects that the existence of the impugned sections of the relevant statutes have had and are having on the plaintiff scarcely require proof; but there is ample proof of it. It is a feature of modern society in Ireland that the male homosexual is scorned, denigrated and, to a degree, ostracised by a very significant section of the community; it may be that this is because of apparent effeminacy or because of the criminal guilt that attaches under the relevant sections. I am content respectfully to adopt the graphic and moving description of the problems faced by the plaintiff, and others like him, in our society, as specified by Mr. Justice Henchy in his judgment and I would add to his list of those who do not suffer such social sanctions the venal, the dishonest, the corrupt and the like.
It is not appropriate to seek to make any comparable assessment of the situation of the female homosexual – suffice it to say that no evidence was led at the trial in respect of such persons. From one's own knowledge of life in the Irish community, the situation of the female homosexual is not affected in any significant way either by the existence of the impugned sections or by contemporary mores. But I do not lose sight of the fact that ss. 61 and 62 of the Offences Against the Person Act, 1861, would appear to contemplate participation by a female in the commission of the offences, although she could not be charged as the offender, whilst s. 11 of the Criminal Law Amendment Act, 1885, has no relevance whatever to females, homosexual or otherwise; the offence of gross indecency under that latter statute can only be committed by male persons.
One does not have to be a homosexual to commit an offence under any of the three sections; it is the act or deed itself that constitutes the offence. In the case of a male homosexual, it is more likely that he, rather than a male heterosexual, will commit such an act or deed; clearly, also, the act proscribed by s. 61 may be committed by a male upon a female, who may be his wife, a feature to which I shall return. Such an act was an offence in the common-law courts by the statute 10 Chas. I, sess. 2, c. 20, and in the older form of indictment it was described as "against the order of nature, that detestable and abominable crime of buggery (not to be named among Christians)" – see 1 East P.C. 480; 12 Co. Rep. 37. In R. v. Jellyman (1838) 8 C. & P. 604 it was held that a married woman who consents to her husband committing an unnatural offence with her was an accomplice in the felony and, as such, her evidence required confirmation, although her consent or non-consent was quite immaterial to the offence.
The plaintiff's locus standi, as such, is beyond question; considerations such as the fact that he has not been prosecuted under any of the sections are irrelevant since the sections impugned are, subject to the constitutional considerations, prima facie part of the law of the State. If there were a positive decision made by the Gardaí or the Director of Public Prosecutions never to prosecute in any such case, in my view it would be unlawful as a positive decision not to enforce the law. In the amended defence delivered by the Attorney General, the only plea made on this issue is that the plaintiff has no locus standi to allege that ss. 61 and 62 of the Act of 1861 are an unconstitutional invasion of the privacy of marriage. Pursuant to that plea, it is contended by counsel for the Attorney General that, although the plaintiff runs the risk of prosecution under the two sections of the Act of 1861, he has not the right to call in aid of his attack upon the constitutionality of the sections the rights that attach to the privacy of marriage. He is an irremediably exclusive homosexual and will never marry; therefore, relying upon the decision of this Court in Cahill v. Sutton [1980] I.R. 269 it is contended that he has not the standing required to enable him to call in aid what may be called abstract constitutional rights.
In the judgments of the Chief Justice and Mr. Justice Henchy in Cahill v. Sutton [1980] I.R. 269, the observations were expressed to be related to the Court's jurisdiction to decide questions concerning the validity of laws passed by the Oireachtas and did not expressly extend to pre-1937 statutes or, indeed, to pre-1922 statutes. Further, no distinction was made in regard to criminal statutes, as Cahill's Case was concerned with a claim for damages for personal injuries arising from an alleged breach of a contractual duty. At p. 282 of the report Mr. Justice Henchy said:-
"This general rule means that the challenger must adduce circumstances showing that the impugned provision is operating, or is poised to operate, in such a way as to deprive him personally of the benefit of a particular constitutional right." The emphasis is mine.
Later he said at p. 284:-
". . . he is required, as a condition of invoking the court's jurisdiction to strike down the law for having been unconstitutionally made (with all the dire consequences that may on occasion result from the vacuum created by such a decision), to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering."
At p. 285 he postulated circumstances in which a person who is not so qualified might be permitted to maintain the attack:-
"For example, while the challenger may lack the personal standing normally required, those prejudicially affected by the impugned statute may not be in a position to assert adequately, or in time, their constitutional rights. In such a case the court might decide to ignore the want of normal personal standing on the part of the litigant before it. Likewise, the absence of a prejudice or injury peculiar to the challenger might be overlooked, in the discretion of the court, if the impugned provision is directed at or operable against a grouping which includes the challenger, or with whom the challenger may be said to have a common interest – particularly in cases where, because of the nature of the subject matter, it is difficult to segregate those affected from those not affected by the challenged provision. However, those examples of possible exceptions to the rule should not be taken as indicating where the limits of the rule are to be drawn. It is undesirable to go further than to say that the stated rule of personal standing may be waived or relaxed if, in the particular circumstances of a case, the court finds that there are weighty countervailing considerations justifying a departure from the rule."
In the present case, Mr. Justice McWilliam referred to Cahill v. Sutton [1980] I.R. 269 in these words.
"As part of the argument with regard to the right to privacy, it is submitted that, as the sections of the Act of 1861 apply to married couples, these sections constitute a violation of the right to privacy of husband and wife in respect of the intimacy of their sexual life, as declared by the Supreme Court in McGee v. The Attorney General. After the evidence in the present case had concluded, the Supreme Court gave judgment in Cahill v. Sutton. In that case the plaintiff alleged that the Statute of Limitations, 1957, violated the provisions of the Constitution because it did not contain a provision which would have preserved the constitutional rights of other persons, who might thereby be prejudiced; but the inclusion of the suggested provision would not have altered the position of the plaintiff in that case and it was held that he was not entitled to rely on a possible prejudice to some other person who had made no claim. The case for the present plaintiff is based on the fact that he is permanently and exclusively homosexual. Therefore, no question can arise of prejudice to him in respect of marital privacy, and it seems to follow from the decision in Cahill's Case that he is not entitled to rely on this ground to challenge the constitutionality of the sections. If the statute is challenged by married persons, they may be able, from the nature of their marriage relationship, to present a case on facts and circumstances which do not arise in the present case."
At the end of his judgment the learned trial judge makes a further reference to what may be called the sex-discrimination argument.
"The class of persons affected by the section is that of men, all men, and gross indecency may obviously take quite different forms when committed by men than when committed by women. This is one of the matters which, in my opinion, the legislature may reasonably take into account in deciding what activities should be declared to be unlawful for the preservation of public order and morality and the attainment of true social order.
Furthermore, on this branch of the argument, the plaintiff is saying, in effect, that there would be no complaint if the law were amended by making it an offence for women to commit acts of gross indecency. If this were done, he would not get any benefit and, by analogy to the decision in Cahill v. Sutton, this is not an argument on which he is entitled to rely."
The hearing of the present case in the High Court for the taking of evidence appears to have concluded on the 2nd July, 1980; judgment in the Supreme Court in Cahill's Case was delivered on the 9th July, 1980, and the attention of the learned trial judge was subsequently drawn to the decision in that case. Before seeking to examine the reason for the decision in that case, there are certain factors in it to which I should refer and there are two subsequent decisions of this Court that bear upon it. It does not appear from the judgment of the President of the High Court in Cahill's Case that the locus standi of the plaintiff was an issue in the High Court; there is no report of the argument of counsel. Page 275 of the report states:- "Subsequently, the Chief Justice informed the legal advisers of the parties that the members of the Supreme Court wished to hear submissions for and against the proposition that the plaintiff had sufficient locus standi to invoke the Court's jurisdiction to declare the provisions of s. 11, sub-s. 2(b), of the Statute of Limitations, 1957, invalid having regard to the provisions of the Constitution of Ireland, 1937. The issue of the locus standi of the plaintiff was tried by the Supreme Court on the 5th February, 1980."
King v. The Attorney General [1981] I.R. 233 was also heard by Mr. Justice McWilliam and his judgment was delivered on the 24th October, 1978. The plaintiff in that action challenged the constitutionality of s. 4 of the Vagrancy Act, 1824, and s. 15 of the Prevention of Crimes Act, 1871, and s. 7 of the Penal Servitude Act, 1891. The learned judge, presumably because no such pleading was raised, makes no reference to locus standi in his judgment. The argument of the 21st February, 1980, on the appeal (as reported at p. 245) does not advert to this question. At pp. 249-50 of the report the Chief Justice says:-
"In my view, he was also right in confining his decision to the questioned provision and in not pronouncing on other parts of s. 4 of the Act of 1824. Having been convicted, the plaintiff had an interest and a locus standi to complain in relation to the statutory provisions under which he had been convicted. This, in my view, he has done successfully in relation to at least one of the loitering offences. However, I cannot see that any inconsistency with the Constitution was, or could be, suggested in relation to the provision creating the offence of being in possession of housebreaking implements with a felonious intent. As Mr. Justice McWilliam pointed out, s. 4 of the Act of 1824 creates many separate and distinct offences. The fact that s. 15 of the Act of 1871 applies all of s. 4 of the Act of 1824 to Ireland is no ground for suggesting that, upon inconsistency in relation to one portion of s. 4 (as amended) being established, the provisions of s. 15 itself and, as a consequence, all of s. 4 should fall also. In my view, such a result would violate the provisions of Article 50 of the Constitution. This is not to say that all of the rest of s. 4 of the Act of 1824 is consistent with the Constitution. In my view, it is not. It suffices for me to say that the provision creating the offence in relation to the possession of housebreaking implements is, and that, in relation to other provisions, the plaintiff has no locus standi to complain." The emphasis is mine.
Despite the terms of the head-note of the report of King's Case: , stating that Cahill v. Sutton [1980] I.R. 269 was applied by the Court as a whole, I do not find in the Chief Justice's judgment any words supporting a proposition that possible infringements of the abstract rights of others may not be called in aid by an individual affected, or in imminent danger of being affected, by a section of a particular statute; the Chief Justice does no more than confirm what I believe to be the true rule of locus standi which is that, ordinarily, the challenger must demonstrate personal impact. In his judgment, with which Mr. Justice Griffin and Parke J. agreed, Mr. Justice Henchy said at pp. 257-8 of the report:- "I am in full agreement with Mr. Justice McWilliam that the impugned provisions (as represented by the version of them which I have set out in this judgment), because of their inconsistency with the Constitution and, particularly, having regard to Article 50, s. 1, failed to have the force or effect of law upon the coming into operation of the Constitution. I am also in agreement with his decision to the effect that the defects relied on by the plaintiff circumscribed his case to such an extent that he had no standing to impugn the constitutionality of other provisions in the sections in question, which did not bear on the convictions of which he complained: see the decision of this Court in Cahill v. Sutton [1980] I.R. 269. "At p. 262 he says:- "Thirdly, I would reject the submission made on behalf of the plaintiff that Mr. Justice McWilliam should have declared unconstitutional the whole of s. 4 of the Act of 1824 (as so applied to Ireland and amended). The plaintiff has not the necessary locus standi to seek such a declaration. The essential relief sought by him can be granted, and is being granted, without entering into any wider investigation of the constitutionality of the section."
I confess that, reading the judgment of Mr. Justice McWilliam in King's Case, I am unable to find any expression of opinion by him to the effect that the defects relied on by the plaintiff circumscribed his case to such, an extent that he had no standing to impugn the constitutionality of other provisions in the sections in question which did not bear on the convictions of which he complained. At that time, of course, Cahill's Case had not been decided in the Supreme Court. In his short judgment in King's Case, Kenny J. makes no reference to the issue of locus standi, in any form, but concurs in the order proposed by Mr. Justice Henchy. In the circumstances, it appears to me that King's Case, in which the issue of locus standi does not appear to have been argued at the Bar is, at best, authority for the proposition that where a section of a statute creates a multitude of offences, the constitutional validity of the several parts of such section may only be challenged by an individual who is charged with an offence under the relevant portion of the section – but he may not challenge the constitutional validity of other portions of the same section creating other offences. As such, it has little relevance to the instant case. In The State (L'Henryenat) v. The Attorney General [1983] I.R. 193 Miss Justice Carroll applied Cahill's Case.
In The State (Lynch) v. Cooney [1982] I.R. 337 the prosecutor challenged the constitutional validity of s. 31, s. 1, of the Broadcasting Authority Act, 1960, as inserted by s. 16 of the Broadcasting Authority (Amendment) Act, 1976, and the validity of the Broadcasting Authority Act, 1960 (Section 31) (No. 2) Order, 1982. Under the heading of locus standi, the Chief Justice referred, at p. 362 of the report, to Cahill's Case and said:- "In Cahill v. Sutton [1980] I.R. 269 this Court decided that in the absence of a sufficient interest on the part of the plaintiff, as to the effect of an impugned law on his rights or personal situation, such a challenge would not be entertained" and he cited that portion of the judgment of Mr. Justice Henchy at p. 284 of the report of Cahill's Case to which I have already referred. In Lynch's Case the prosecutor and, through him, his party "were given such access [to make election broadcasts] by the Authority and would have been entitled to act on the invitation extended to them were it not for the order made by the respondent Minister. The invitation was not withdrawn by the Authority – it was rendered inoperable by ministerial intervention. In such circumstances the prosecutor and his party were deprived of the benefit lawfully accorded to them in the first instance and, in my view, were entitled to complain if the deprivation were unlawful. Accordingly, in my view, the prosecutor has sufficient standing to complain that s. 31, sub-s. 1, under which the order was made (which order deprived him of broadcasting time accorded to him by the Authority) is invalid having regard to the provisions of the Constitution" – per O'Higgins C.J., see pp. 362-3 of the report.
In the same case Mr. Justice Walsh examined at some length the question of whether or not the prosecutor had a sufficient, or any, interest to maintain the proceedings. At pp. 368-9 of the report he said:- "Certiorari has been described as 'this great remedy' by Kenny J. – it is one of the procedures available to initiate judicial review of administrative actions, among other things. It has also been observed that restrictive rules about standing are, in general, inimical to a healthy system of administrative law. The question of the judicial control or review of the administrative acts of public authorities has given rise, not surprisingly, to a considerable amount of judicial opinion upon the question of what sufficient interest is required of the party bringing the public authority before the court. This subject has also arisen in the international sphere covering procedures of such courts as the International Court of Justice, the European Court of Human Rights and the Court of Justice of the European Communities. For example, in the last-named court the private individual plays a very small part in the supervision of the legality of Community action, whereas in proceedings before the European Court of Human Rights he has far greater scope. In national jurisdictions, and particularly in the member States of the European Economic Community, the question has given rise to much case law. In the latter States the actio popularis is admissible in its classical form only in quite exceptional cases. However, there may be circumstances in particular contexts in which, in effect, such an action may be allowed. In Ireland it is sufficient to be 'a person aggrieved' – a term to be generously interpreted – which is generally understood to include any person who has reasonable grounds to bring the proceedings. Broadly speaking the test would be the same whether one is proceeding for certiorari or for a declaratory action. Each of these is a discretionary remedy but not in the sense that the grant or refusal may be at the whim of the court. The discretion of a court to refuse either of these remedies to a person aggrieved is very limited and, normally, they will issue ex debito justitiae.."
Mr. Justice Walsh continues in Lynch's Case to cite a number of decisions of the British courts in Ireland and of English courts and then, at pp. 370-71 of the report, says:- "The many decisions of the Courts of Ireland and of other national jurisdictions amply illustrate the truth of the statement that a question of what is a sufficient interest is to be determined having regard to the circumstances of each case. When one examines the same question in the context of declaratory orders the conclusion is the same, i.e., that the person concerned must be able to show sufficient interest or a 'real interest' – see Transport Salaried Staffs' Association v. Córas lompair Éireann [1965] I.R. 180 – and that again will depend upon the circumstances. In an action such as the present (which ultimately raises a question of the validity of an Act of the Oireachtas having regard to the provisions of the Constitution) which was initiated by way of certiorari and is tantamount in its effect, if successful, to a declaratory order, the question is whether the test should be any different by reason of the challenge to the constitutionality of the Act of 1960. In my view it should not. The question of the sufficiency of interest must be examined in the light of the particular circumstances. As the Chief Justice pointed out in his judgment, the test laid down in Cahill v. Sutton [1980] I.R. 269 for determining a sufficiency of interest is an obligation to show that 'the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering.' In the judgment of the Court in East Donegal Co-Operative v. The Attorney General [1970] I.R. 317, this Court expressly rejected (at p. 338 of the report) the contention that it was necessary for a plaintiff to show that the provisions of the legislation impugned applied not only to the activities in which he was currently engaged but that their application has 'affected his activities adversely. This decided that a person does not have to wait to be injured) Once again, the question of sufficiency of interest will depend upon the circumstances of the case and upon what appears to be the extent or nature of the impact of the impugned law on the plaintiff's position. As was stated in the East Donegal Case (at p. 338):- 'To afford proper protection, the provisions [of the Constitution] must enable the person invoking them not merely to redress a wrong resulting from an infringement of the guarantees but also to prevent the threatened or impending infringement of the guarantees and to put to the test an apprehended infringement of these guarantees.' Thus while it may be said that in most systems of law, including our own, nowhere is an actio popularis admitted in respect of alleged invalidities, yet there may be circumstances in particular contexts in which, in effect, such an action may be allowed." I have added the emphasis.
Mr. Justice Henchy, whose judgment in Lynch's Case did not receive express support from any of his colleagues, was dealing extensively with matters which are extraneous to the present issue and holding that the decision of the former Supreme Court in In re Ó Laighleis [1960] I.R. 93 should be overruled. At pp. 381-3 of the report he said:- "Has the prosecutor the standing necessary for impugning the constitutionality of the section under which the Minister's order was made? It was urged on behalf of the Minister that the prosecutor had no right at common law, by statute, or under the Constitution to make a political party broadcast, or any other kind of broadcast, on radio or television; that the general rule stated in Cahill v. Sutton (at p. 284) requires a litigant in the prosecutor's position 'to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering'; and that no reason has emerged from the circumstances of this case to justify a departure from that general rule. . . But once the Authority made its decision and promulgated it to Sinn Féin and to the public (i.e., that, as part of its scheme of allocation of political party broadcasts, it would allow Sinn Féin to make one two-minute broadcast on each of the Authority's five broadcasting outlets), the prosecutor, as the nominated broadcaster for Sinn Féin, had a vested defeasible right, as between himself and the Authority, to make that broadcast, subject only to approval of its content by the Authority. However, before a text of the proposed broadcast could be submitted for approval, the Minister intervened by making the impugned order, thus nullifying the right of the prosecutor to make the broadcast. The documents which are before us would not suggest that the text of the proposed broadcast would be unacceptable to the Authority. Consequently it must be held that it was the Minister's intervention under s. 31, sub-s. 1, that divested the prosecutor of the right to broadcast which had been given by the Authority, and which had been accepted by him and his party. . . For the reasons I have given, I consider that the prosecutor had locus standi to question the constitutionality of s. 31, sub-s. 1, of the Act of 1960."
In Cahill's Case (in which, incidentally, judgment was delivered after the plaintiff had died; the defendant having died on the 28th January, 1980, and the Bank of Ireland, as the executors of his will, having been substituted as, defendant) the plaintiff's action was clearly barred by the provisions of s.11, sub-s.2(b), of the Statute of Limitations, 1957. Accordingly, her locus standi as "a person aggrieved" could not be in doubt. Her claim was defeated by the relevant section. She said the section was unconstitutional because of the absence of a saving clause enabling a plaintiff to escape the rigour of the period of limitation if, for instance, he were unaware of the material facts until after the expiration of the period, or for other appropriate reasons; in those circumstances, she submitted, the absolute nature of the bar was a failure by the State to give effect to the guarantee in Article 40, s. 3, sub-s. 1, of the Constitution. Referring to Mrs. Cahill's knowledge, Mr. Justice Henchy said at p. 280 of the report:- "Within weeks of the commencement of her treatment in 1968 she knew of the facts which, according to her, constituted a breach of contract, and of their prejudicial effects on her. Yet she did not bring her action within the three-year period. It is clear – indeed, it is admitted – that the plaintiff would still be shut out from suing after the three-year period of limitation even if the suggested saving provision had been included in the Act of 1957."
At p. 282 of the report of Cahill's Case Mr. Justice Henchy cited portion of the judgment of this Court, delivered by Mr. Justice Walsh, in East Donegal Co-Operative v. The Attorney General [1970] I.R. 317 (from p. 338):-
"With regard to the locus standi of the plaintiffs the question raised has been determined in different ways in countries which have constitutional provisions similar to our own. It is unnecessary here to go into this matter in detail beyond stating that at one end of the spectrum of opinions on this topic one finds the contention that there exists a right of action akin to an actio popularis which will entitle any person, whether he is directly affected by the Act or not, to maintain proceedings and challenge the validity of any Act passed by the parliament of the country of which he is a citizen or to whose laws he is subject by residing in that country. At the other end of the spectrum is the contention that no one can maintain such an action unless he can show that not merely do the provisions of the Act in question apply to activities in which he is currently engaged but that their application has actually affected his activities adversely. The Court rejects the latter contention and does not find it necessary in the circumstances of this case to express any view upon the former."
Mr. Justice Henchy continues, at p. 282 of the report of Cahill's Case , as follows:-
"It should be observed that the contrast drawn in that passage is between two widely divergent opinions or contentions and not between two opposing judicial attitudes taken up in other countries. In point of fact, in no comparable jurisdiction to which the Court's attention has been directed does either of those two polarised opinions or contentions seem to have received authoritative judicial acceptance. On the contrary, in other jurisdictions the widely accepted practice of courts which are invested with comparable powers of reviewing legislation in the light of constitutional provisions is to require the person who challenges a particular legislative provision to show either that he has been personally affected injuriously by it or that he is in imminent danger of becoming the victim of it this general rule means that the challenger must adduce circumstances showing that the impugned provision is operating, or is poised to operate, in such a way as to deprive him personally of the benefit of a particular constitutional right. In that way each challenge is assessed judicially in the light of the application of the impugned provision to the challenger's own circumstances."
The learned judge does not identify the "other jurisdictions" in which this is the widely accepted practice. Nor is it apparent from the report that reference was made to any jurisdiction other than that of the United States. I am, however, aware of what appears to be the practice in the Federal Supreme Court of the United States to which I shall return. It is to be noted, however, that subsequent to Cahill's Case Mr. Justice Walsh reverted in Lynch's Case to the question of the actio popularis.
At the conclusion of his judgment in Cahill's Case' , Mr. Justice Henchy said at p. 288 of the report:- "This particular defence was not raised before the President; it emerged for the first time in this Court and, because it is of the essence of this judgment, it is not possible to express either approval or disapproval of the President's reasons for his conclusion that s. 11, sub-s. 2(b), is not unconstitutional. While in the circumstances of this case the Court is unable to rule on the validity of the claim made against the constitutionality of s. 11, sub-s. 2(b), of the Act of 1957, it is proper to point out that the justice and fairness of attaching to that sub-section a saver such as was inserted by the British Parliament in s. 1 of the Limitation Act, 1963, are so obvious that the enactment by our Parliament of a similar provision would merit urgent consideration."
The latter expression of judicial urgency has met with the same legislative inactivity as similar hopes expressed in Goulding Chemicals Ltd. v. Bolger [1977] I.R. 211 being in marked contrast to the reaction to the decision of this Court in The State (Pine Valley) v. Dublin County Council [1982] I.L.R.M. 169. It is now over three years since the locus standi issue was argued in Cahill's Case and in July it will he three years since the decision of this Court. I think it is fair to infer from that decision that the Court inclined to the view that the relevant sub-section of s. 11 of the Act of 1957 was constitutionally invalid. Yet, it remains in the statute book unaltered, unchallenged and, presumably, pleaded in similar actions. My experience in practice at the Bar, recently concluded, does not encourage belief that the comments of Mr. Justice Henchy just cited are common knowledge.
I would assume that Mr. Justice Henchy's reference in Cahill's Case to other jurisdictions included that of the United States. In contrast with our Constitution which by Article 34, s. 3, sub-s. 2, expressly confers upon the High Court and the Supreme Court the jurisdiction to test the validity of any law having regard to the provisions of the Constitution, no such express power is to be found in the Constitution of the United States, in whose Federal Supreme Court that power was first asserted in Marbury v. Madison (1803) 5 U.S. 137 where the court, under Marshall C.J., asserted the right of constitutional review of Acts of Congress in a case of considerable politico-legal interest, as set out in the 9th edition of Gunther's Constitutional law (Cases and Materials) at p. 3 and subsequent pages. The Marbury decision was the subject of recurring and severe criticism and, in so far as condemning a statute is involved, it was not operated until 1857 in the infamous decision in Scott v. Sandford (1857) 60 U.S. 393 which struck down as unconstitutional a law condemning slavery because of the effect of that law upon citizens of particular States.
The right of the United States Supreme Court as a first step, and the manner or desirability, as a second step, to strike down either statutes of the individual States or Acts of Congress has been the subject of continuing controversy, in particular on the question of standing to assert constitutional jus tertii – the right to raise the rights of others. The Federal Supreme Court professes to deny a litigant the right to raise what are termed "moot" arguments, and yet appears, where it thinks proper so to do, essentially to concede it. In Tileston v. Ullman (1943) 318 U.S. 44 a doctor sought a declaratory order in respect of a statute ban in Connecticut on the use of contraceptives, alleging that the statute would prevent his giving professional advice to three patients whose lives would be endangered by child bearing. The State court held the law constitutional. The Supreme Court of the United States dismissed the appeal on the grounds that the proceedings presented no constitutional question which the appellant had standing to assert. "One may not claim standing to vindicate the constitutional rights of some third party" but, apparently, academic lawyers have found difficulty in finding consistency since "the Court has created numerous exceptions which lack a coherent pattern and leave the significance of the rule in doubt": see 88 Harv. L. Rev. 423 (1974). I do not find it to any purpose to examine further the basis of what may be termed the exclusionary rule in the United States, nor have I adequate means so to inquire either in that jurisdiction or elsewhere.
It is of interest, however, that Griswold v. Connecticut (1965) 381 U.S. 479 (to which four out of the five judges of this Court referred in giving judgment in McGee's Case [1974] IR 284) was, on its face, a case of jus tertii; the appellants were found guilty as accessories in the use of contraceptives and called in aid of their attack upon the Connecticut statute the right of privacy in marriage, which was not enjoyed or claimed by them but was enjoyed by those with whom they had a professional relationship. This aspect of Griswold's Case does not appear to have excited comment in McGee's Case and Griswold's Case was not referred to in either argument or judgment in Cahill's Case. I pose the question as to how the issue raised in McGee's Case would have been determined if the action had been brought by Mrs. McGee's doctor. Possibly such an action would have failed. Would this Court have placed so much significance on Griswold's Case in a later action by Mrs. McGee? I confess, I get little assistance from a consideration of cases decided in the United States of America, where the origin of the constitutional review lies in judicial decisions rather than in the express words of a Constitution.
Locus standi, as I understand it, means the status or qualification, as it were, to maintain the action, and not the right to advance arguments of a particular kind, unrelated to the facts of the case, in support of the challenge made to the statute, statutory instrument or the like. Locus standi derives from the simple fact that the individual seeking redress has been, or is imminently, in danger of being damaged by the impugned provision. The second step (which is not in my view, one of locus standi in its ordinary sense) is whether or not he may test the constitutional validity of the impugned provision by reliance upon arguments which are founded on a factual situation irrelevant to, and removed from, the position of the person maintaining the suit. The latter is an everyday and, indeed, essential part of the dialectic that is the common usage of our Courts; it leads to the debate between counsel and judge, including the high responsibility that lies upon counsel to inform the judge of judicial precedent within his knowledge – however unfavourable to his case. I recognize that these views appear to run counter to a part of the reason for the decision in Cahill v. Sutton [1980] I.R. 269 which I am bound, however reluctantly, to follow. I do not accept the "busybody" basis for that decision – historically, during a time when the lawyer might be forgiven for having thought that a person damnified by a statute would be entitled to challenge it upon any argument he wished, however removed from the facts of his own case, from 1937 to 1980, I doubt if the court records reveal many or even any instances of such officious interference.
I do not regard the decision in Cahill's Case ,with particular reference to those parts of the judgment of Mr. Justice Henchy which I have quoted, as determining this selfsame issue in a criminal case. If, however, it does do so, it would appear to me that the position of the plaintiff comes within particular circumstances which warrant the waiving or relaxing of the stated rule of personal standing. In a case of personal injuries, such as in Cahill's Case ,one can readily envisage another case where a plaintiff will wish to argue the same point and be able to show that it is relevant to his particular case. It seems to me so unlikely as to be out of consideration that any prosecution could be brought or anticipated in a case where an act constituting an offence under ss. 61 or 62 of the Offences Against the Person Act, 1861, would be the subject of a criminal charge brought against a citizen who is married, or is about to be married, but with whose privacy of marriage the sections clearly conflict. However distasteful it may appear to the heterosexual individual, it must be recognized that, within the privacy of marriage, the type of act contemplated by the sections may well occur, which fact Mr. Justice McWilliam appears to have accepted. If a statute containing similar prohibitions were now to be passed by the Oireachtas, it would, on its face, be clearly in conflict with that right of privacy in marriage and, therefore, repugnant to the Constitution. Being so, the enactment of such a law is prohibited by Article 15, s. 4, sub-s. 1. of the Constitution and, therefore, invalid. A Bill enacting such a law, if referred to this Court under Article 26 of the Constitution, would be held repugnant to the Constitution. Failing such a reference under Article 26 and assuming a sexual act committed by a married male citizen on his wife and an identical sexual act committed by an unmarried male citizen upon a female who is not his wife, but who may be someone else's wife, is it to be said that the latter would not be entitled to impugn the new statute as being an invalid invasion of the privacy of marriage? Is it to be said that, in such circumstances, the latter may be convicted and imprisoned, whilst the former will not be prosecuted?
I postulate another set of circumstances: a married male citizen brings proceedings by declaratory action to challenge the constitutional validity of ss. 61 and 62 of the Act of 1861, there is no true defence to the action but it is defended; in either event a declaratory order will he made striking down the sections as being constitutionally invalid because of the unwarrantable invasion of the right of privacy in marriage; there is no possible method of separating a constitutionally infirm part from the remainder – even if such is permissible in a criminal statute; accordingly, the relevant sections are deemed not to have survived the enactment of the Constitution. It is possible that on the day before such declaratory order is made a male unmarried citizen would be prosecuted under one or both of the sections of the Act of 1861, and on the day following the making of the declaratory order another such citizen would be similarly prosecuted. I need not further outline the absurdities that would result from a rigid adherence to what is stated to be the rule in Cahill v. Sutton [1980] I.R. 269 in criminal cases; having little footing in its extension to criminal law it should have none at common law.
There have been many male homosexuals who were happily married – an obvious example in Irish history is Oscar Wilde whose conviction was under s. 11 of the Act of 1885. I find it an impossible intellectual exercise to uphold a view that, in the criminal law, such niceties of distinction can be validly drawn. It follows that, in my view, the plaintiff is entitled, in his attack upon the constitutional validity of ss. 61 and 62 of the Act of 1861, to avail of an argument based upon an invasion of the privacy of marriage. Counsel for the Attorney General, properly in my view, has not sought to argue that the impugned sections are not such an unconstitutional invasion; in my judgment, in the result, these two sections fail the test of constitutionality on that ground alone. For me, there is no statable argument that can support the intrusion of the criminal law in the sphere of life that is described as the privacy of marriage unless, as is nowhere shown to be the case here, there is a pressing social need or compelling State necessity to permit the intrusion. The scope of the privacy of marriage has been described, with great compassion, in the judgments of Budd J., Mr. Justice Henchy and Mr. Justice Griffin in McGee v. The Attorney General [1974] IR 284 and I, respectfully, adopt the relevant parts of those judgments.
It would be sufficient, so far as these two sections are concerned, to rest my judgment on the observations I have already made but, in a case involving such weighty constitutional considerations, I do not consider it proper so to limit my judgment. Therefore, I turn to consider a different aspect of the case which raises not the issue of the privacy of marriage but the right to privacy itself.
Article 50, s. 1, of the Constitution provides:- "Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."
Counsel for the Attorney General argues that, in applying the template of the Constitution to the impugned statutes, the Court should examine the question on the supposition that the challenge to the statutes had been made immediately after the enactment of the Constitution. Would a court, in 1938, have upheld the claim of inconsistency?
In McGee v. The Attorney General [1974] IR 284 O'Keeffe P. said at p. 292 of the report:- "In my view, one must look at the state of public opinion at the time of the adoption of the Constitution in order to determine whether the effect of its adoption was to remove from the statute book a section of the Act of 1935: see the principles of construction applied by the Supreme Court in O'Byrne v. The Minister for Finance [1959] I.R. 1. The section impugned was barely two years on the statute book when the Constitution was adopted. If the submission of the plaintiff is correct, then public opinion as to what were fundamental rights must have been such as to require that the rights guaranteed to individuals by the Constitution were inconsistent with the continued legality of the section. I consider that the best test of the position is to be found in the views expressed when the section was being passed into law since, in point of time, this was so close to the enactment of the Constitution by the people. I find that the section was adopted without a division, although it was technically opposed. I cannot think that this reflects a public opinion in favour of the existence of such a right of privacy as is alleged by the plaintiff to be guaranteed under the Constitution."
Whilst the report of the argument of counsel for Mrs. McGee (p. 296) refers to this factor in the case, an examination of the judgments does not disclose any consensus in the Supreme Court. FitzGerald C.J., who dissented, appears to have treated the matter as a contemporaneous issue, when (at p. 300) he was dealing with the relevant facts concerning the manufacture of the particular contraceptive in question.
Mr. Justice Walsh touched on the matter at pp. 306-8 of the report of McGee's Case. Having quoted the provisions of Article 50, s. 1, he said:- "I have referred to the wording of s. 1 of Article 50 because, apart from being the foundation of the present proceedings, one of the submissions made on behalf of the Attorney General was to the effect that a statutory provision in force prior to the Constitution could continue to be in force and to be carried over by Article 50 even though its provisions were such as could not now be validly enacted by the Oireachtas because of the provisions of the Constitution. Stated as a general proposition, I find that this is in direct conflict with the very provisions of Article 50 and is quite unsustainable. However, in my opinion, there are circumstances in which the proposition could be partially correct.
If a pre-Constitution statute was such that it was not in conflict with the Constitution when taken in conjunction with other statutory provisions then in existence and with a particular state of facts then existing [my emphasis] and if such other statutory provisions continued in effect after the coming into force of the Constitution and the particular state of facts remained unaltered, the provisions of the first statute might not in any way be inconsistent with the provisions of the Constitution. If, however, subsequent to the coming into force of the Constitution the other statutory provisions were repealed and the state of facts was altered to a point where the joint effect of the repeal of the other statutes and the alteration of the facts was to give the original statute a completely different effect, then the question would arise of its continuing to be part of the law. In my view, Article 50, by its very terms (both in its Irish and English texts), makes it clear that laws in force in Saorstát Éireann shall continue to be in force only to the extent to which they are not inconsistent with the Constitution; and that, if the inconsistency arises for the first time after the coming into force of the Constitution, the law carried forward thereupon ceases to he in force.
The relevance of this to the present case is clear. There is no evidence in the case to indicate what was the state of facts existing at the time of the passing of the Act of 1935 and the years subsequent to it up to the coming into force of the Constitution, and even for a period after that. It appears to have been assumed, though there is no evidence upon which to base the assumption, that contraceptives were not manufactured within the State at that time or were not readily available otherwise than by sale. The validity or otherwise of a law may depend upon an existing state of facts or upon the facts as established in litigation, as was clearly indicated by this Court in Ryan v. The Attorney General [1965] IR 294. To control the sale of contraceptives is not necessarily unconstitutional per se; nor is a control on the importation of contraceptives necessarily unconstitutional. There may be many reasons, grounded on considerations of public health or public morality, or even fiscal or protectionist reasons, why there should be a control on the importation of such articles. There may also be many good reasons, grounded on public morality or public health, why their sale should be controlled. I used the term 'controlled' to include total prohibition. What is challenged here is the constitutionality of making these articles unavailable. Therefore, the decision in this appeal must rest upon the present state of the law and the present state of the facts relating to the issues in dispute. Therefore, even if it were established that in 1935, 1936 or 1937, or even 1940, contraceptives were reasonably available without infringement of the law, that would not necessarily determine that s. 17 of the Act of 1935 now continues to be in full force and effect."
An examination of the judgments of Budd J., Mr. Justice Henchy and Mr. Justice Griffin in McGee's Case does not disclose any reference to this issue. It would seem, therefore, that there is no authority binding upon me as to the manner in which I should approach this particular issue, if, indeed, it is necessary to consider it. At p. 319 of the report of McGee's Case Mr. Justice Walsh said:-
"According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the
individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts." The emphasis is mine.
In The State (Healy) v. Donoghue [1976] I.R. 325 the Chief Justice accepted that view of what the preamble conveys (for the purpose of considering the issues which arose in that case) and, before citing the above passage from the judgment of Mr. Justice Walsh in McGee's Case , the Chief Justice said at p. 347 of the report of Healy's Case :- "The preamble to the Constitution records that the people 'seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution.' In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance With prevailing ideas. The preamble envisages Constitution which absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment." After the above passage from the judgment of Mr. Justice Walsh in McGee's Case (quoted by the Chief Justice in Healy's Case ) Mr. Justice Walsh continued:- "The development of the constitutional law of the United States of America is ample proof of this. There is a constitution which, while not professing to be governed by the precepts of Christianity, also in the Ninth Amendment recognises the existence of rights other than those referred to expressly in it and its amendments. The views of the United States Supreme Court, as reflected in the decisions interpreting that constitution and in the development of their constitutional law, also appear firmly to reject legal positivism as a jurisprudential guide."
I respectfully adopt those observations of the Chief Justice and Mr. Justice Walsh as a correct statement of the proper judicial approach in testing the constitutionality of a statute. In a case such as the present, involving an examination of a British statute, I would refer, also, to the judgment of Mr. Justice Walsh in The State (Sheerin) v. Kennedy [1966] I.R. 379 (with which the other members agreed) where he says at p. 386 of the report:- "The Oireachtas established by the Constitution is the only parliament which is, or was, subject to the provisions of the Constitution and therefore the question of determining the validity of a law having regard to the provisions of the Constitution call only refer to laws enacted by the Oireachtas established by the Constitution. All laws in force on the date immediately prior to the coming into operation of the Constitution are presumed not to be in conflict with the Constitution in force at the date of their enactment or in excess of the powers of the parliament which enacted them, but they enjoy no such presumption in respect of the provisions of the present Constitution and fall to be examined under the provisions of Article 50 of the Constitution – not as to their validity but, even assuming they were valid, as to whether or not they are inconsistent with the provisions of the present Constitution."
I find it philosophically impossible to carry out the necessary exercise of applying what I might believe to be the thinking of 1937 to the demands of 1983. It seems to me that, in this respect, the Attorney General's argument fails in limine – it would plainly be impossible to identify with the necessary degree of accuracy of description the standards or mores of the Irish people in 1937 – indeed, it is no easy task to do so today. If one had to seek, in testing the consistency or otherwise of a pre-1922 statute or a statute of Saorstát Éireann with the Constitution, to do so by reference to the presumed attitude of the Irish people in 1937 (however difficult that might be 45 years after the enactment of the Constitution), one must postulate the concept of doing so 145 years after its enactment. Suffice it to say that the Constitution is a living document; its life depends not merely upon itself but upon the people from whom it came and to whom it gives varying rights and duties. Ten years after the decisions in McGee v. The Attorney General [1974] IR 284 and in Byrne v. Ireland [1972] I.R. 241, it is difficult to recall the forensic surprise they created. In my view, it passes from the realm of legal fiction into the world of unreality if the test sought to be applied is one based on some such question as:- "Did the people of Saorstát Éireann in 1937 consider that the offence created by [some Victorian statute] should no longer be in force?" The only thing considered by those who voted for or against the Constitution in 1937 was whether or not they wanted a new Constitution. An examination of the Dáil debates on the draft Constitution does not encourage any contrary view.
Articles 40-44 of the Constitution set out the "fundamental rights" of all citizens; Article 40 specifies certain personal rights but does not include any express reference to a right to privacy such as is claimed by the plaintiff to have been "identified by the Supreme Court in McGee v. The Attorney General [1974] IR 284 and not confined to the right to marital privacy but one of the personal rights of the citizen which encompasses but is not exhausted by the right of a husband and wife to privacy in their sexual relations within marriage" – see p. 9 of the plaintiff's written submissions. In his judgment in Ryan v. The Attorney General [1965] IR 294 Kenny J. said at pp. 312-13 of the report:-
"I think that the personal rights which may be involved to invalidate legislation are not confined to those specified in Article 40 but include all those rights which result from the Christian and democratic nature of the State. . . there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all – the right to free movement within the State and the right to marry are examples of this."
As was stated by Mr. Justice Walsh in G. v. An Bord Uchtála [1980] I.R. 32 at p. 66 of the report:- "It is now well accepted that the view, first enunciated by my learned colleague, Mr. Justice Kenny, in the High Court in Ryan v. The Attorney General [1965] IR 294 and confirmed by this Court on appeal in the same case (that there are rights guaranteed by the Constitution other than those which are enumerated in the Constitution itself) is the correct view." Mr. Justice Walsh does not directly indicate what he accepts as the source of such unenumerated rights but, at p. 68 of the report of G. v. An Bord Uchtála [1980] I.R. 32, he cites with approval the observations of Mr. Justice Henchy in McGee v. The Attorney General [1974] IR 284 at p. 325 of the report:- "As has been held in a number of cases, the unspecified personal rights guaranteed by sub-s. 1 of s. 3 of Article 40 are not confined to those specified in sub-s. 2 of that section. It is for the Courts to decide in a particular case whether the right relied on comes within the constitutional guarantee. To do so, it must be shown that it is a right that inheres in the citizen in question by virtue of his human personality. The lack of precision in this test is reduced when sub-s. 1 of s. 3 of Article 40 is read (as it must be) in the light of the Constitution as a whole and, in particular, in the light of what the Constitution, expressly or by necessary implication, deems to be fundamental to the personal standing of the individual in question in the context of the social order envisaged by the Constitution. The infinite variety in the relationships between the citizen and his fellows and between the citizen and the State makes an exhaustive enumeration of the guaranteed rights difficult, if not impossible."
At p. 310 of the report of McGee's Case , Mr. Justice Walsh said:- "Articles 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection. The individual has natural and human rights over which the State has no authority; and the family, as the natural primary and fundamental unit group of society, has rights as such which the State cannot control. However, at the same time it is true, as the Constitution acknowledges and claims, that the State is the guardian of the common good and that the individual, as a member of society, and the family, as a unit of society, have duties and obligations to consider and respect the common good of that society. It is important to recall that under the Constitution the State's powers of government are exercised in their respective spheres by the legislative, executive and judicial organs established under the Constitution. I agree with the view expressed by O'Byrne J. in Buckley and Others (Sinn Féin) v. The Attorney General [1950] I.R. 67 that the power of the State to act for the protection of the common good or to decide what are the exigencies of the common good is not one which is peculiarly reserved for the legislative organ of government, in that the decision of the legislative organ is not absolute and is subject to and capable of being reviewed by the Courts. In concrete terms that means that the legislature is not free to encroach unjustifiably upon the fundamental rights of individuals or of the family in the name of the common good, or by act or omission to abandon or to neglect the common good or the protection or enforcement of the rights of individual citizens."
At first sight, Mr. Justice Walsh's judgment seems to identify the source of these unenumerated rights not as the Christian and democratic nature of the State (pace Kenny J. in Ryan v. The Attorney General[1965] IR 294) but as the human personality, pace Mr. Justice Henchy in McGee's Case.
I recognize that, immediately before the passage I have just cited, Mr. Justice Walsh referred to the plaintiff's submission which invoked that portion of the preamble to the Constitution in which the people, in giving themselves the Constitution, express the intention to seek "to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured." At pp. 318-19 of the report of McGee's Case Mr. Justice Walsh said:- "In a pluralist society such as ours, the Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the different religious denominations of either the nature or extent of these natural rights as they are to be found in the natural law. The same considerations apply also to the question of ascertaining the nature and extent of the duties which flow from natural law; the Constitution speaks of one of them when it refers to the inalienable duty of parents to provide according to their means for the religious, moral, intellectual, physical and social education of their children: see s. 1 of Article 42. In this country it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable . . . The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of s. 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity – not the charity which consists of given to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the Individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity."
In the instant case, the Chief Justice has stated that "the preamble proudly asserts the existence of God in the Most Holy Trinity and recites the people of Ireland as humbly acknowledging their obligation to Our Divine Lord Jesus Christ. It cannot be doubted that a people so asserting and acknowledging their obligations to Our Divine Lord Jesus Christ were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs. Yet it is suggested that in the very act of so doing the people rendered inoperative laws which have existed for hundreds of years prohibiting unnatural sexual conduct which Christian teaching held to be gravely sinful. It would require very clear and express provisions in the Constitution itself to convince me that such took place." As I have sought to indicate in my observations under the heading of locus standi, I cannot accept the approach based upon applying the test of the then contemporary mores to the issue of constitutionality. It must be the mores contemporaneous with the raising of the issue itself. This is in no way to question the proposition that what is termed unnatural sexual conduct is denounced by Christian teaching as gravely sinful; I have no doubt but that Christian teaching is to he found which would declare sexual conduct of the kind contemplated by s. 61 of the Act of 1861 between husband and wife to be gravely sinful; yet it seems a clear inference from the judgment of Mr. Justice McWilliam – and I, as I have already indicated, am firmly of opinion – that the section constitutes an impermissible invasion of the right of privacy in marriage.
In so far as the judgment of Kenny J. in McGee's Case , in referring to the Christian and democratic nature of the State, is a relevant identification of source (cited by the President of the High Court in The State (C.) v. Frawley [1976] I.R. 365 at p. 373 and in The State (M.) v. The Attorney General [1979] I.R. 73 at p. 80), I would respectfully dissent from such a proposition if it were to mean that, apart from the democratic nature of the State, the source of personal rights, unenumerated in the Constitution, is to be related to Christian theology, the subject of many diverse views and practices, rather than Christianity itself, the example of Christ and the great doctrine of charity which He preached. Jesus Christ proclaimed two great commandments – love of God and love of neighbour; St. Paul, the Apostle to the Gentiles, declared that of the great virtues, faith, hope and charity, the greatest of these is charity (1 Cor. 13, 13). I would uphold the view that the unenumerated rights derive from the human personality and that the actions of the State in respect of such rights must be informed by the proud objective of the people as declared in the preamble "seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual maybe assured, true social order attained, the unity of our country restored, and concord established with other nations." The dignity and freedom of the individual occupy a prominent place in these objectives and are not declared to be subject to any particular exigencies but as forming part of the promotion of the common good.
The Constitution does not guarantee or, in any way, expressly refer to a right of privacy – no more, indeed, than does the United States Constitution, with which our Constitution bears so many apparent similarities. In the United States Constitution the right to privacy in one form or another has been founded upon the First Amendment (Stanley v. Georgia (1969) 394 U.S. 1); the Fourth and Fifth Amendments (Terry v. Ohio (1968) 392 U.S.1); in the penumbras of the Bill of Rights (Griswold v. Connecticut ) — the contraceptives case; in the Ninth Amend ment (Griswold v. Connecticut (1965) 381 U.S. 479); and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment (Meyer v. Nebraska (1923) 262 U.S. 390).
In our Constitution a right of privacy is not spelled out. As stated by Mr. Justice Henchy in his judgment, there is a guarantee of privacy in voting under Article 16, s. 1, sub-s. 4 – the secret ballot; a limited right of privacy given to certain litigants under laws made under Article 34; the limited freedom from arrest and detention under Article 40, s. 4; the inviolability of the dwelling of every citizen under Article 40, s. 5; the rights of the citizens to express freely their convictions and opinions, to assemble peaceably and without arms, and to form associations and unions – all conferred by Article 40, s. 6, sub-s. 1; the rights of the family under Article 41; the rights of the family with regard to education under Article 42; the right of private property under Article 43; freedom of conscience and the free profession and practice of religion under Article 44. All these may properly be described as different facets of the right of privacy, but they are general in nature (as necessarily they must be in a Constitution) and do not set bounds to the enumeration of the details of such a right of privacy when the occasion arises. In our jurisdiction, this is best exemplified in the McGee Case where, whilst Mr. Justice Walsh rested his judgment upon the provisions of Article 41, and Budd J., Mr. Justice Henchy and Mr. Justice Walsh relied upon the guarantees of Article 40, section 3. I would respectfully share the latter view of the true foundation for what the McGee Case upheld – the right of privacy in marriage.
Whilst the Constitution of the Irish Free State (Saorstát Éireann), 1922, did not, as it were, isolate the fundamental rights of citizens in a manner in which the present Constitution of 1937 has done, articles 6,7,8,9 and 10 of that Constitution indicate the manner in which certain rights were spelled out but, to a degree, highlight the absence of such guarantees as are contained in Article 40,s. 3, and Article 41 of the Constitution. There may well be historical reasons for these differences – a greater awareness of the need for the enunciation of fundamental rights was present during the 1930s than at the time of the negotiations for the Treaty that led to the enactment of the Constitution of the Irish Free State. At all events, since 1937, the concept of judicial dynamism in constitutional law has grown, thereby identifying more readily the role of the Courts and, in particular, this Court as the judicial organ of government, not merely by way of a supervisory jurisdiction on the actions of the legislative and executive branches of government but by way of legal interpretation – thus playing its part in "seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured as most strikingly evidenced by the decision in the McGee Case.
How then, to identify the nature of the personal right of privacy? The right to privacy has been called by Brandeis J. of the United States Federal Supreme Court "the right to be let alone"– a quotation cited by the Chief Justice in this case and by Mr. Justice Walsh in his dissenting judgment as a member of the Court of Human Rights in Dudgeon v. United Kingdom (1981) E.H.R.R. 149. By way of definition it has brevity and clarity and I would respectfully adopt it as accurate and adequate for my purpose but, to a degree, the very definition begs the question. The right to privacy is not in issue; the issue is the extent of that right or the extent of the right to be let alone. If a man wishes to maim himself in private, may he not do so? No, because he may become a charge upon the public purse. If a man wishes to masturbate alone and in private, he may do so. If he and another male adult wish to do so in private, may they not do so? No, each commits an offence under s. 11 of the Act of 1885. If a woman wishes to masturbate in private, she does not commit an offence. If two women wish to do so in private, neither of them commits an offence. If a man and a woman wish together to do so in private, not being married to each other, neither of them commits an offence. In such latter circumstances, the act committed by the woman upon the man may be identical with that which another man would commit upon him, save that his partner is a woman.
I refer to these particular examples to seek to illustrate the problem that arises if a testis related to what may be generalised as compelling State interest. The term "compelling State interest" is commonly used, particularly in the United States, in cases depending on the claim to privacy. It is self evident that such interest is overwhelming in the protection of minors, persons under incapacity of one kind or another, public decency, discipline in the armed forces or the security forces and so on. But what is the test in circumstances where none of these obvious instances of compelling State interest apply? The Chief Justice has touched upon the alleged greater spread of venereal diseases but I do not accept that the State has discharged in any way a burden of proof of establishing that such a circumstance amounts to a compelling State interest. I join with Mr. Justice Henchy in the observations he has made in his judgment on the failure of the Attorney General, with all the resources at his disposal, to call any evidence whatever to displace the impressive body of evidence called on behalf of the plaintiff. Subject to the matters that I have already instanced, in my opinion a very great burden lies upon those who would question personal rights in order to justify State interference of a most grievous kind (the policeman in the bedroom) in a claim to the right to perform sexual acts or to give expression to sexual desires or needs in private between consenting adults, male or female.
The Acts of 1861 and of 1885 were passed during the long reign of a British monarch whose name is identified with many human virtues – those of duty, responsibility, love of family and country and so on – but a less attractive quality of that age was the gross hypocrisy that frequently prevailed, even amongst the ranks of the legislators. Certainly, male homosexuality was known to exist on a wide scale and the Act of 1861 provided a most terrible penalty for what might well be the natural expression of such a human condition. Can the impugned sections be justified to remain on the statute book in 1983 as being consistent with or, more correctly, as being not inconsistent with the personal rights guaranteed by the Constitution?
I have read the evidence of the several distinguished witnesses who testified for the plaintiff; I have examined the cross-examination of these witnesses and the textbooks and reports to which they referred. Applying, as I do, and as Mr. Justice Henchy does, the principles to be drawn from the decision of this Court in Northern Bank Finance v. Charlton [1979] I.R. 149 on the issues as to whether or not an act or acts prohibited by the impugned sections are part of the make-up of an exclusively homosexual male and whether such prohibitions are or are not required by public order and morality or any other facet of the common good, the only conclusion to which the learned trial judge could come to on the evidence was that the plaintiff's case was established. The learned trial judge stated that the question for him to decide was "whether there are grounds on which the legislature, under current social conditions and having regard to the prevailing ideas and concepts of morality and the current knowledge of matters affecting public health etc., could now reasonably come to the conclusion that the acts declared unlawful are such as ought to be prohibited for the attainment of the true social order mentioned in the preamble, the implementation of the principles of social policy directed by Article 45 and the preservation of the public order and morality mentioned in Article 40 of the Constitution." Without expressing any view as to whether or not the question may be so precisely stated, in my opinion there was no evidence before the learned trial judge upon which he could hold other than that the impugned sections were not consistent with the Constitution.
I cannot delimit the area in which the State may constitutionally intervene so as to restrict the right of privacy, nor can I overlook the present public debate concerning the criminal law and arising from the statute of 1861 in regard to abortion – the killing of an unborn child. It is not an issue that arises in this case, but it may be claimed that the right of privacy of a pregnant woman would extend to a right in her to terminate a pregnancy, an act which would involve depriving the unborn child of the most fundamental right of all – the right to life itself. I recognize that there has been no argument in this case relevant to such an issue, but nothing in this judgment, express or in any way implied, is to be taken as supporting a view that the provisions of s. 58 of the Act of 1861 (making it a criminal offence to procure an abortion) are in any way inconsistent with the Constitution. There are but two judicial references to this question, if question be the appropriate word. In McGee's case Mr. Justice Griffin said at p. 335 of the report:- "In this context, I wish to emphasise that this judgment is confined to contraception as such; it is not intended to apply to abortifacients, though called contraceptives, as in the case of abortifacients entirely different considerations may arise."
More elaborately, in G. v. An Bord Uchtála {1980] I.R. 32 Mr. Justice Walsh said at p. 69 of the report:- "Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child's natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child's natural right to life and all that flows from that right are independent of any right of the parent as such. I wish here to repeat what I said in McGee's Case at p. 312 of the report:- '. . . any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.' In these respects the child born out of lawful wedlock is in precisely the same position as the child born in lawful wedlock.
The Constitution rejected the English common-law view of the position of the illegitimate child in so far as its fundamental rights are concerned. It guarantees to protect the child's natural rights in the same way as it guarantees to protect the natural rights of the mother of the child."
For myself I am content to say that the provisions of the preamble, which I have quoted earlier in this judgment, would appear to lean heavily against any view other than that the right to life of the unborn child is a sacred trust to which all the organs of government must lend their support. The right of the adult male citizen privately to express his sexual orientation alone or with another such person free from State interference is an entirely different matter.
The plaintiff has, further, rested his case upon alleged breach of the constitutional guarantee of equality contained in s. 1 of Article 40. Having reached the conclusion already expressed, I do not consider it necessary to examine the law in the light of that section. However, I am not to be taken as agreeing with the view that the plaintiff's argument implies an over-wide interpretation of the scope of that constitutional guarantee. Likewise, in so far as the plaintiff has rested his case upon article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the decision of the European Court of Human Rights in the Dudgeon Case , I do not consider it necessary to come to any conclusion in that regard. Apart from the limited issue of locus standi, my judgment depends upon the right of privacy derived from Article 40, as I have sought to explain. It may be, as some of the theological witnesses claimed, that the criminalisation of the sexual acts proscribed by the impugned sections is contrary to the law of God; I am content to hold that it is contrary to one of the fundamental rights guaranteed by the Constitution.
I join with Mr. Justice Henchy where he says:- "It would not be constitutional to decriminalise all homosexual acts, any more than it would be constitutional to decriminalise all heterosexual acts. Public order and morality; the protection of the young, of the weak-willed, of those who may readily be subject to undue influence, and of others who should be deemed to be in need of protection; the maintenance inviolate of the family as the natural primary and fundamental unit of society; the upholding of the institution of marriage; the requirements of public health; these and other aspects of the common good require that homosexual acts be made criminal in many circumstances. . . Not only will the Oireachtas be empowered to make homosexual acts criminal but, for the purpose of upholding the requirements of the common good in its full constitutional connotation, it will be necessary for such legislation to hedge in such immunity from criminal sanctions as it may think fit to confer on acts of a homosexual nature in private between consenting adults, with appropriate definitions as to adulthood, consent and privacy and with such exceptions as to prostitution, immoral exploitation, publicity, drug abuse, commercialisation, family relationships and such other matters or areas of exception as the Oireachtas may justifiably consider necessary . . ."
I would allow this appeal.
