Constitution, Equality Guarantee and Discrimination

40.1 states that “all citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the state shall not in its enactments have due regard to differences of capacity, physical and moral, or social function. The Equality Guarantee has been interpreted and has achieved a vast development through case law. The principle of equal treatment was referred to in the case of MD (Minor) V Ireland, by Denham CJ as “implicit in the free and democratic in the nature of the state”.

While the advancing of the Equality Guarantee in Article 40.1 has helped shape the precedent of cases in relation to equality, there is not a vast amount of recent cases, which could possibly grapple with the comments that there has been a limited impact on the elimination of discrimination in Ireland. However, it could also be said that the discrimination in Ireland is simply hidden in plain sight.

It holds a strong belief in The Bar Review that through the recent jurisprudence in the Superior Courts, it has made it easier for the equality guarantee to be invoked.

In Ireland, the interpretation of Article 40.1 in mostly in a non-formal manner. In Ireland, cases regarding equality mostly fall under attributes of race, religion, marital status, wealth, pregnancy, age etc. It is up to the applicant to show that they have been treated differently because of these attributes compared to someone else of similar situation without the discrimination. This can be seen in the case of O’G v Attorney General [1985] ILRM 61, where a widower wanting to adopt believed that widows were being treated more favorably.

He successfully challenged the constitutionality of the Adoption Act 1974. McMahon J stated that “widowers as a class are not less competent than widows to provide for the material needs of children and their exclusion as a class must be based on a belief that a woman on the virtue of her sex has an innate capacity for parenthood which is denied to a man and the lack of which renders a man unsuitable as an adopter”.

The courts have created a weak body of law in relation to the application of the equality guarantee, which could attribute to the limit impact on the discrimination in Ireland. It is limited in precedent to identify the particular measures that would contrive the equality guarantee. Oran Doyle holds that when compared with the case of De Burca v Attorney General [1976], “there is very little consideration of whether the discrimination would reflect any difference between men and women that is relevant to the matter being regulated”. This can be seen in the case of State V An Bord Uchtala, where the Supreme Court rejected the argument relating to certain provisions in the Adoption Act 1952, that were in favor of unmarried mothers and discriminated against unmarried fathers. The claim was that they discriminated against unmarried fathers simply because of their sex.

In comparison in De Burca V Attorney General [1985], where the plaintiff believed that the Juries Act 1927, was in discrimination of women, as it allowed women to be exempt from jury duty and only allowed to participate if they showed their interest in participating. Women had to willingly ask to participate whereas men were obliged and required to participate. The Supreme Court found the Juries Act 1927 unconstitutional as it breached the guarantee of equality. Walsh J stated that “article 40 does not require identical treatment of all persons without recognition of differences in relevant circumstances, but it forbids invidious or arbitrary discrimination. Through the Equality Guarantee this case was found successful unlike the Uchtala case, even though they are both relatively similar. This proves a weakness in the case law regarding equality. These examples can help to provide an insight as to possible discrimination still at surface in Ireland today.

The equality guarantee is also powerless in anything deemed unequal or discrimination that is not on the grounds of the human personality doctrine. This doctrine rules that only inequalities based in relation to the human itself can be founds as unconstitutional. As stated by Oran Doyle, the interpretation of this certain doctrine has garnered a lot of criticism over its application. In the case of Quinn’s Supermarket V Attorney General [1972], it was found that equality guarantee does not extend to artificial persons such as companies. Walsh J laid it out by declaring “it is a guarantee of equality against any inequalities grounded upon the assumption, or indeed a belief, that some individual or individuals, by any reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community”. In Comparison in the US under Americas Equal Protection Clause, artificial persons are covered under the equality guarantee holding Ireland at a weakness. Similarly, in Macauley v Minister for Posts and Telegraphs [1966], Kenny J rejected the argument, stating “the guarantee in the constitution of equality before the law relates to the position of the citizen as a human person”. It was also held by the Supreme Court in Madigan v Attorney General [1986] that article 40.1 can not be applied in unequal treatment based on the status of a property owner.

It is fair to conclude that Ireland has a lot of holes in its case law in relation to equality that can only be rectified through a continuum of case laws. However, it can be seen as declared by Dolan that “positive inequalities are necessary in a civilized society. It must be figured out whether the inequalities in Ireland are the direct issue in relation to the discrimination or whether the case law that we have now allowed it to slightly decrease.