The Equality Guarantee
Article 40.1 of the Constitution provides: 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 or moral, and of social function”.
Titles of nobility shall not be conferred by the State. The prior approval of the Government is required before any citizen may accept any title of nobility or of honour.
In one sense, equality simply refers to the most basic equality, such as equality of political participation and equal application of the law. The law must apply equally to all persons. Some may not be favoured by exemption or immunity from the law.
The guarantee extends more widely, so as to invalidate some unjustifiable distinctions and discrimination. However, the Courts have interpreted the protection narrowly. They have allowed a wide berth to the legislature to distinguish between individuals in different circumstances under various schemes of legislation.
The guarantee has been supplemented by more tangible legislative provisions, in the last 30 years. The employment equality legislation and Equal Status Act have introduced wide-ranging and detailed provisions, which prohibit discrimination on a range of grounds. See our chapters on employment equality and equal status legislation.
Application of Guarantee
The reference to human persons in Article 40 has been used as a basis for interpreting it very narrowly in some instances. It was stated in Brennan v. Attorney General, that the Article deals with the person as a human being and requires for each citizen as a human person, that he enjoys equality before the law. However, other cases have suggested strongly that it is not so limited.
The courts have used the Constitutional protection to strike down laws that discriminated without any justifiable reasons. The Juries Act provided that persons were eligible to serve on a jury, by reason of the rateable valuation of their properties. It also exempted women from jury service unless they opted in. The result was that a very small number of women served on juries.
The Supreme Court indicated that Article 40 did not require identical treatment of all persons, without recognition of differences in relevant circumstances. However, it forbids invidious and arbitrary discrimination. The protection demands that the State treats equals equally, and those who are unequal, unequally.
The property qualification could not conceivably refer to any physical and moral capacity of the prospective juror. The Chief Justice was also of the view that the gender-based differentiation was inconsistent with the equality guarantee.
The Constitution does not guarantee absolute equality in all circumstances. The legislature must necessarily be allowed to treat different categories in different ways, for the purpose of giving effect to policy and reflecting it in schemes of legislation.
In Quinn Supermarket v. Attorney General, it was said that the provision is not a guarantee of absolute equality for all citizens in all circumstances, but it is a guarantee of equality as human persons and is a guarantee related to their dignity as human persons and a guarantee against inequality grounded upon assumption or belief that some individual or individuals or classes of individuals by 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.
Differential price controls in a town and outside a town, and between bars and lounges was held unconstitutional in Cassidy v. Minister for Industry and Commerce. The legislation did not permit the making of such distinctions and accordingly, it could not be implied.
The provision of different periods of qualification for pensions between judges of the High Court and the Circuit Court was upheld in McMenamin v. Ireland.
The Courts have sometimes emphasised that the guarantee applies to equality as “human persons “. This has been used, in some cases, to narrow the scope of the protection. Under this interpretation, the protection provides against discrimination based on human characteristics, in contrast to discrimination in a wider social setting. Non-essential aspects of the human being, such as their work or business, are not part of the essential human personality, under this approach.
The Supreme Court has stated that the guarantee of equality as human persons relates to their dignity as human beings. It prohibits inequality based on assumptions, that certain individuals or classes of individuals by reason of their human attributes or ethic, racial, social or religious background, are to be treated as inferior or superior to other.
This approach has been used, in some cases, to narrow the scope of the protection. Under this interpretation, the protection provides against discrimination based on human characteristics, in contrast to discrimination in a wider social setting. Non-essential aspects of the human being, such as their work or business, are not part of the essential human personality, under this approach.
In recent decades, the Courts have measured the permissibility of discrimination by reference to the legitimacy of its purposes and objectives. If a legitimate rational objective can be identified, then the court is unlikely to find the discrimination to be unconstitutional. The courts defer to the legislature. Provided that the classification is for a legitimate purpose, the discrimination is relevant to that purpose and each class is treated fairly, the differentiation is likely to be upheld
Indirect discrimination is that which on its face does not appear to be discriminatory, but which is discriminatory in fact and in effect. The Courts have been reluctant to extend the Constitutional equality provision to cover indirect discrimination. Equality legislation has sought to prohibit indirect discrimination.
The approach taken in the USA is that once discrimination is shown to exist on certain sensitive grounds such as sex, race, language, differing opinions, then the onus is on the State to justify the provision. Discrimination on sensitive grounds is considerably more difficult for the state to justify, on these grounds. Where there is discrimination on sensitive grounds, the legislation must have compelling justification and the discrimination must be tailored to achieving that legitimate objective.
The US approach has found some favour in Ireland. It has not been articulated by the Irish courts on the same board basis. However, there is definite support for the proposition that where a classification is based on a suspect ground such as race and gender, it must have a clear legitimate purpose. In effect, the onus is on the State to justify the distinctions.
In a recent case, a provision of the Offences against the State Act, which provided for a significantly different punishment for males and females convicted of indecent assault, was found unconstitutional. The judge reasoned that there were prima facie grounds to impugn the legislation based on the gender ground. In such circumstances, the differentiation must be legitimate.
Discrimination could be legitimate on the basis of capacity, physical or moral or differences of social function of men and women, provided that it achieved a legitimate objective, in a manner that was not invidious, arbitrary or capricious. Arguments are made that male and female victims required different degrees of protection, necessitating discrimination.
The legislation assumed the gravity of a sexual offence against a woman is greater than that against a man, because of the risk of unwanted pregnancy. However, in the circumstances, the court could not find objective considerations of differences, which justified the discrimination and distinction. The court expressly stated that the burden of establishing justification lies with the state.
Many common law rules, which discriminated against women, have been found unconstitutional or are presumed to be unconstitutional on the basis of the protection. A wife was deemed to have the domicile of her husband and was not capable of having a separate domicile at common law.
Another common law rule creates a presumption that a crime committed by a woman in the presence of her husband was presumed to be coerced by her husband. These and a number of similar rules were held to be inconsistent with the Constitution.
The Adoption Act required the consent of the mother only to adopt. The father was not allowed to make representations, prior to the making of the order. The discrimination was found not to be inconsistent with the Constitution. The Supreme Court held that the discrimination was based on a justifiable difference.
A widower challenged another provision of the Adoption act, which excluded the possibility of an adoption order in favour of a childless widower. A childless widow was entitled to adopt. The High Court held that there was no objective difference such as to justify the distinction made by the legislation. The discrimination was founded on an idea of the difference in capacity between men and women, which had no foundation in fact. It was an unwarranted denial of human equality, contrary to Article 40.1.
A distinction in treatment between deserted wives and deserted husbands under social welfare legislation was held permissible by the Supreme Court. The justification was upheld on the basis of historic discrimination against women, the effect of which that deserted wives were more likely to have greater needs than deserted husbands. The equality guarantee was not infringed.
In De Búrca v. Attorney General, it was stated that the juries legislation was “undisguisedly discriminatory on the grounds of sex only…. the statutory provision does not seek to make any distinction between the different functions that women may fulfil and it does not seek to justify the discrimination on the basis of any social functions…. in my view, it is not open to the State to discriminate in its enactments between persons who are the subject of law, solely on the ground of sex of those persons. If a reference is to be made to the sex of a person, then the purpose of the law that makes such discrimination should be to deal with some physical or moral capacity or social function that is related exclusively or very largely, to that of sex only.
In MD v. Ireland, a difference of treatment of boys and girls as regards the offence of statutory rape was upheld. The Criminal Law (Sexual Offences) Act provided that it was an offence to have intercourse with a girl under 17 and a boy under 15. The difference in treatment was upheld by the Supreme Court due to the natural physiological differences between males and females that cannot be entirely assimilated, including in particular, the risk of pregnancy.
The common law dependent domicile principle was held to be inconsistent with the guarantee of equality in GM v. TM.
In McKinley v. Minister for Defence, the common law right of consortium for a husband was extended to enable wives to recover damages. “The simple solution is to make the common law conform to the Constitution by declaring that the established right of the husband still exists and to deny such right to the wife would be an infringement of Article 40.”
In W v. W, the principle of a married woman’s dependent domicile was found unconstitutional on equality grounds and rendered void with retrospective effect. In other cases, the courts have refused to strike down social welfare provisions that favoured women on the basis that this would constitute lawmaking by the courts.
In Norris v. Attorney General, the prohibition on sexual intercourse between men was found constitutional by a majority of three to two, although effectively later reversed by the European Court of Human Rights. This was so notwithstanding, there was no equivalent prohibition in respect of women.
In Zappone v. Revenue Commissioners, it was held not unconstitutional to discriminate between same-sex partners relative to married couples of a man and woman. Subsequently, the European Court on Human Rights held contrary and by referendum, the Constitution was amended in May 2015 to allow same-sex marriage.
Prior to 1987 legislation, the non-marital children of a deceased did not qualify for a share of his estate on intestacy. A challenge to the Constitutionality of the pre-1987 position was rejected by the Supreme Court.
The Court could not find the differences were necessarily unreasonable, unjust or arbitrary. The Court in part justified the discrimination on the basis of the Constitutional recognition of the primacy of the family based on marriage.
In OB v. S, the Supreme Court held that the discrimination against non-matrimonial children in relation to inheritance rights was permissible due to the protection afforded by the family by Article 41. The provision, although clearly discrimiChildrenatory was aimed at maintaining the primacy of the family as the fundamental unit group of society.