Monday, 7 November 2011

Mr Justice McCarthy's judgment in Norris v Attorney General

This was the great Irish judge Niall McCarthy's dissenting judgment in the Supreme Court of Ireland in Norris v Attorney General [1983] IESC 3.  The case had been brought by the gay rights campaigner David Norris, who was seeking to have the Irish state's laws against homosexuality declared unconstitutional.  It would be another 10 years before the laws were repealed.

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 test is 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....

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.