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The KAL case kickstarted a decade of debate on marriage equality

Katherine Zappone and Ann Louise Gilligan made global headlines when they tried to have their Canadian marriage recognised by the Irish State.

Katherine Zappone and Ann Louise Gilligan outside the High Court in 2006.
Katherine Zappone and Ann Louise Gilligan outside the High Court in 2006.
Image: Photocall Ireland archive

THE MARRIAGE EQUALITY referendum due next spring will be – and already is – a huge font of debate.

To give context to how the country has arrived at this legislative watershed, journalist Una Mullally has compiled a chronology of events which led to this point, through the testimony of those who lived through them.

In the Name of Love: The Movement for Marriage Equality in Ireland is published by The History Press Ireland.

While the country will be asked to vote in 2015 on whether marriage rights should be extended to same-sex couples, one couple was fighting their corner on that very subject over a decade ago.

The following extracts reflect on the so-called KAL case – an action pursued by Katherine Zappone, now a senator, and Ann Louise Gilligan to have their Canadian marriage recognised for the filing of a joint tax return in Ireland.

The High Court gave them leave to pursue their claim in 2004, and it was appealed to the Supreme Court in 2007.

In 2012, the Supreme Court returned their case to the High Court, where this time they were challenging the constitutionality of the Civil Registration Act 2004 – the law that has in its language, the definition of marriage as between a man and a woman.

In this extract, co-founder of Marriage Equality Gráinne Healy, the former head of the Equality Authority Niall Crowley, and the director of UCD’s Women’s Studies Centre Katherine O’Donnell recall first hearing that Ann Louise and Katherine were pursuing their case:

GRÁINNE HEALY:  Two things. One, I thought, ‘Jaysus, aren’t they very brave?’ – in Ireland, you know – to be putting themselves in for what was definitely going to be a trial by fire, and just all of the prurient interest that there would be in these two well-known, very middle-class, middle-aged women coming out as lesbians and the whole interest in that.

I remember thinking, ‘Jaysus, I hope they’ve thought this through’, concerned about them, really, and then thinking, ‘Well, if they’re going to do that, the rest of us are going to have to get behind them and support them. They’re putting themselves personally out there.’ That was the evening I decided, ‘Ok, whatever this case requires’, and that for me was the sparking point – I need to get behind this.

NIALL CROWLEY: I thought it was hugely important on the same basis that people taking the anti-discrimination cases was very important.

This was bigger even, and riskier in terms of the cost and scale of it, and the courts that they were moving through in relation to it – the High Court – and so it was a very courageous move, a very strategic move, a very well-thought-out move, a very carefully planned move. It was very impressive in every way.

KATHERINE O’DONNELL: They were ideal poster girls, which is very important when you’re going for a legal case. So they were perfect in that regard, and they were able to speak to Middle Ireland. They were able to speak in quite religious language as well, and spiritual language, and they’ve been together a very long time.

They had led exemplary, good lives, so they were perfect as a test-case couple and they were robust and strong enough to carry the emotional demands, which are really significant in taking that kind of case. They were ideal.

Just the tax case thing, I could never get very excited about that. I think it would have been more helpful to have taken on another kind of case.

When the women came before the High Court in 2004 to seek permission for the case to go ahead:

Katherine Zappone: So I’m up in my study phoning a few people still to let them know this is about to happen, because we wanted to make sure we told all of our close friends so they didn’t just hear it in the news.

We weren’t going to court until later in the afternoon. And I’m up there and all of a sudden Ann Louise runs up to me and says, ‘It’s breaking news this morning that there is a lesbian couple that is taking a case for their partnership.’ But they didn’t name us.

Ann Louise Gilligan: I’m chairing a State board at this time. So I have to ring the minister and say, ‘Look, this is breaking. We didn’t think it would have broken. We thought you better know.’ … It broke in sixty-seven countries.

Katherine Zappone: We met our solicitor and we were literally going into the courtroom to seek permission to actually run the case. As we went to the courthouse, there were tonnes of photographers because they wanted to know who the couple was.

Ann Louise Gilligan: I remember Mary Wilson sitting at the table on the way in.

Katherine Zappone: Then word started to go out. We get upstairs, we wait to go in, we met sisters, relatives of friends of ours who are lawyers, and they saw us and they said, ‘Oh, it’s you!’ And then we get into the courtroom. It’s a packed courtroom, and this is a day where a judge comes in and he’s just listening to one case after another and looking for permission. And it’s usually about ten minutes. That’s what Ger Hogan said to us, ‘You’ll be in and out.’ There’s a couple of cases before us saying, ‘Yes, you’ve got permission.’

Just before one o’clock or lunchtime, Ger Hogan stands up and he says something to the effect of, ‘Your Honour,  I’m here to outline the reasons why we’re seeking permission for a recognition for my clients, who are a same-sex couple, of their Canadian marriage.’

The judge was like this kind of, ‘Uhhh?’ He just looks up – ‘WHAT?’

Ann Louise Gilligan: ‘Clear the courtroom!’

In the course of the actual case, which came before the High Court on 3 October 2006, it became clear that no matter the outcome, this would be a case to spark the ongoing debate about marriage equality in Ireland.

Lesbian couple begin an action so that their Canadian-registered marriage is recognised in Ireland Zappone and Gilligan launching their case in 2006. Source: Niall Carson/PA Archive/Press Association Images

Ivana Bacik: It was very exciting. It was a case that I was really enthusiastic, really passionate about. Katherine and Ann Louise are brilliant people – I’m a huge admirer and fan of theirs. And so it was a great case, one of those cases where you feel ‘this is why I’m practising law’; to try and be involved in constitutional change.

I mean, I’d been involved in other constitutional cases before and since where you feel you’re making a difference, but a lot of my work was very much bread-and-butter criminal work.

Katherine Zappone: Our other Senior Counsel, Michael Collins, [along with Ger Hogan] again also did brilliantly and he was spectacular. I was crying after his first opening, and he said to me … ‘Katherine, there will be good days in court and there will be bad days.’ And there were several bad days.

The State, the two men who were against us, one of them also on the bench now – the Supreme Court – and the other one was Attorney General and was top senior counsel. It was a big fight. Every day there was a big report coming out of it, and one of the days – the first day it broke, I think – it was probably Kathy Sheridan who wrote a piece and it was, ‘Oh, love is in the air’, and all this kind of stuff.

Kathy Sheridan: I remember going down to the High Court on the day. Now, I’ve covered many a case in the High Court and what struck me was that a lot of journalists turned up late. I’m generally not late for cases.

What they [the plaintiffs] had done was the standing on the steps, and had been giving pre-court appearance interviews and having their picture taken.

I always remember their good humour and serene authority. They came back and recreated their entrance for the media, gave the interviews.

To me there was something about these women that was so warm and serene. This country has a terribly divisive history on these social agendas, and these two women were the furthest thing from divisive. As a journalist, you’re treated as the scum of the earth in the High Court. No one will talk to you or give you documents or anything. But here were the plaintiffs, very happy to discuss it all with us in a grown-up fashion.

Ann Louise Gilligan: As the next week unfolded, I could see – not that I could agree with it – but I could absolutely see what was happening, which was: ‘Society isn’t ready. The definitional argument is what people understand to be marriage. Marriage is about complementarity. Marriage is about children.’ All of which, of course, is false.

I could have stood myself and given the counter-argument to every single point, but I could see the judge above, and I just had that sinking feeling. You know, ‘I think the people are probably ready, but I don’t think the legal system is.’ That’s what I was thinking…

My experience in that second week in the court is the lack of attention to the fact that the personal is legal and the legal is personal. And at times I felt there was such a lack of attention to the personal implications for Katherine and I of some of what was being said.

Note: This is an abridged extract from Chapter 3, The KAL Judgement, from In The Name of Love: The Movement for Marriage Equality in Ireland by Una Mullally.

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In The Name of Love by Una Mullally

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