The judge noted that Article 12 of the ECHR is equally predicated.Accordingly, he found that there was no sustainable basis for the applicant's submission that the law which prohibited her from marrying a party of the same biological sex as herself, was a violation of her constitutional right to marry.The Campaign for Homosexual Law Reform was founded in the 1970s to fight for the decriminalisation of male homosexuality, its founding members including Senator Norris and future Presidents of Ireland Mary Mc Aleese and Mary Robinson.
The two cases were consolidated and were heard in April 2007.
Dr Foy stressed the Goodwin decision where the European Court of Human Rights had found that the UK had breached the rights of a transgender woman, including her right to marry.
In 1988 Norris took a case to the European Court of Human Rights to argue that Irish law was incompatible with the European Convention on Human Rights. Ireland, ruled that the criminalisation of male homosexuality in the Republic violated Article 8 of the Convention, which guarantees the right to privacy in personal affairs.
The Oireachtas (Irish parliament) decriminalised male homosexuality five years later, when the Minister for Justice, Maire Geoghegan-Quinn, in the 1992–1994 Fianna Fáil—Labour coalition government included decriminalisation with an equal age of consent (an equal age of consent was not required by the ECHR ruling) in a Bill to deal with various sexual offences.
In support of her claim, she relied on case law from the ECHR.
Mc Kechnie J noted that in Ireland it is crucial that parties to a marriage be of the opposite biological sex.
Homosexuality was decriminalised in 1993, and most forms of discrimination based on sexual orientation are now outlawed.
Ireland also forbids incitement to hatred based on sexual orientation.
Same-sex marriage is legal in Ireland, following approval of a referendum on which amended the Constitution of Ireland to provide that marriage is recognised irrespective of the sex of the partners.
In that case, Dr Foy was a male-to-female transsexual and sought a finding that she was born female but suffered from a congenital disability and claimed that the existing legal regime infringed her constitutional rights to marry a biological man.
The judge concluded that the right to marry is not absolute and has to be evaluated in the context of several other rights including the rights of society.