Norris v. A.G.

Factual and Procedural Background

The Plaintiff, a lecturer who identifies as an exclusively homosexual male, instituted High Court proceedings seeking a declaration that three nineteenth-century statutes criminalising certain sexual acts (sections 61 & 62 of the Offences Against the Person Act 1861 and section 11 of the Criminal Law Amendment Act 1885) were not continued in force by Article 50 of the Constitution and therefore no longer formed part of the law of the State. The High Court rejected the claim. The Plaintiff appealed to the Supreme Court, contending that the provisions infringed a range of constitutionally protected personal rights.

Legal Issues Presented

1. Whether the statutory offences of buggery and gross indecency survive by virtue of Article 50 or are “inconsistent with” the Constitution and therefore void.
2. Whether, and to what extent, a constitutionally protected right of privacy (marital or general) limits the State’s power to criminalise consensual sexual conduct between adult males in private.
3. Whether the impugned provisions violate other constitutional guarantees, including equality before the law, bodily integrity, freedom of expression, and freedom of association.
4. Whether the Plaintiff possessed sufficient locus standi to invoke some or all of those constitutional guarantees.
5. Whether decisions of the European Court of Human Rights, and Article 8 of the European Convention on Human Rights, are relevant to domestic constitutional review.

Arguments of the Parties

Plaintiff’s Arguments

• The legislation criminalises his innate sexual expression and is inconsistent with Article 40 guaranties of personal rights, particularly a broad right of privacy identified in McGee v. Attorney General.
• Sections 61 & 62 also apply to married couples and therefore violate marital privacy.
• By targeting only male conduct, section 11 offends the guarantee of equality before the law.
• Total criminal prohibition endangers his mental and physical health, infringing the right to bodily integrity recognised in Ryan v. Attorney General.
• The provisions chill advocacy and association among homosexual citizens, burdening freedoms protected by Article 40 s. 6.
• The impugned provisions conflict with Article 8 of the European Convention on Human Rights as construed in Dudgeon v. United Kingdom, a judgment the Court should treat as highly persuasive.

Defendant’s Arguments

• The Plaintiff lacks standing to rely on marital privacy because, as an exclusively homosexual and unmarried man, he can suffer no marital injury (Cahill v. Sutton).
• No constitutional right to privacy overrides the State’s legitimate interest in prohibiting conduct considered immoral, harmful to public health, and potentially damaging to the institution of marriage.
• The challenged laws are presumed to continue under Article 50 unless demonstrable inconsistency is shown; mere social change, obsolescence, or foreign jurisprudence is insufficient.
• The European Convention is not part of domestic law (Article 29 s. 6), and Dudgeon has no binding force.

Table of Precedents Cited

Court's Reasoning and Analysis

Delivering the principal judgment, Judge O’Higgins emphasised that Article 50 continues pre-1937 laws unless “inconsistency” with the Constitution is proven, and the burden rests on the challenger. The Court rejected the notion that social obsolescence or foreign precedent suffices to meet that burden.

Standing: Applying Cahill v. Sutton, the Court held the Plaintiff lacked standing to invoke marital privacy but retained standing as a male citizen threatened by criminal sanction.

Equality and bodily integrity: The majority concluded that section 11’s focus on male conduct did not amount to unconstitutional discrimination because the legislature could rationally differentiate between male and female homosexual activity. Claims of damage to mental or physical health could not, in the majority’s view, make otherwise valid legislation unconstitutional.

Right of privacy: While accepting that a general privacy right exists, the majority found it not absolute. Homosexual acts, they reasoned, raise concerns of public morality, public health (referencing venereal disease statistics), and potential harm to marriage. Given the “Christian nature” of the State and Article 41’s special protection of marriage, the legislature could criminalise the conduct without violating constitutional privacy.

European Convention: Citing In re Laighlis and Article 29 s. 6, the Court held that neither the Convention nor Dudgeon bound Irish courts.

Result: Because no constitutional inconsistency was established, Article 50 preserved the impugned provisions.

Dissenting opinions (Judges Henchy and McCarthy) accepted the Plaintiff’s evidence that the blanket prohibition unjustly intruded on an essential aspect of personal autonomy and failed any proportionality test. They would have struck down the statutes and invited the Oireachtas to enact narrower protections.

Holding and Implications

HOLDING: Appeal dismissed; the challenged provisions remain part of the law.

Immediately, the decision left sections 61 & 62 of the 1861 Act and section 11 of the 1885 Act in force, continuing to criminalise consensual homosexual conduct between adult males in private. The majority confirmed that international human-rights instruments do not influence domestic constitutional review absent legislative incorporation. No new constitutional principle was created; rather, the judgment reinforced a restrictive approach to identifying inconsistencies under Article 50. The divided bench, however, signalled emerging judicial disagreement, foreshadowing later legislative change.