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 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.
Government recognition of LGBT rights in Ireland has expanded greatly over the past two decades.
Coincidentally, the task of signing the bill decriminalising male homosexual acts fell to the then President of Ireland, Mary Robinson, an outspoken defender of gay rights who as a barrister and Senior Counsel had represented Norris in his Supreme Court and European Court of Human Rights case.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.Judge Mc Kechnie J noted that in Ireland it is crucial that parties to a marriage be of the opposite biological sex.The judge noted that Article 12 of the ECHR is equally predicated.Therefore, the state is entitled to hold the view which is espoused and evident from its laws.
The Irish Supreme Court returned Foy's case to the High Court in 2005 of the ECHR.In that case, Dr Foy was a transgender woman 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.In support of her claim, she relied on case law from the ECHR.Prior to 1993, certain laws dating from the nineteenth century rendered male homosexual acts illegal.The relevant legislation was the 1861 Offences Against the Person Act, and the 1885 Criminal Law (Amendment) Act, both enacted by the Parliament of the United Kingdom before Irish independence, and having been repealed in England and Wales in 1967, Scotland in 1980 and Northern Ireland in 1982.Foy had also issued new proceedings in 2006 relying on a new ECHR Act, which gave greater effect to the European Convention on Human Rights in Irish law.