By Donncha O’Connell (2009).

Some men need to play a version of golf called ‘male golf’ and can, in order to realise that need, run a golf club in which membership is open exclusively to male players of male golf on the understanding that the principal purpose of that club is to cater only for the needs of men. In practical terms, this means they can have a legal drink after or even before a game of male golf and cannot be punished or deprived in this connection by operation of some equality-proofed application of the licensing laws. To do so would probably kill the game of ‘male golf’ while realising the bolder dreams of golf egalitarians and some golf widows. It is matterless that such clubs allow women to play golf at appointed times and provide female-only locker rooms to facilitate that privilege. That is purely a matter of external relations and does not bear upon the internal workings of private golf clubs which, as well as benefiting from club status, enjoy certain tax advantages.

That, in a nutshell, is what a majority (3:2) of the Irish Supreme Court decided in November in a case taken by the Equality Authority against Portmarnock Golf Club. Four of the judges wrote individual judgments with Ms. Justice Macken agreeing with the two who held in favour of Portmarnock. The basis of her agreement with two differing majority judgments (those of judges Hardiman and Geoghegan) was not explained, which is regrettable given the pivotal nature of her ‘swing vote’ with the majority. She needs to work on her swing!

The majority judgment that has attracted most attention is, unsurprisingly, that of Mr. Justice Adrian Hardiman. His judgment is stinging in its criticism of the Equality Authority for taking the case against Portmarnock Golf Club and laced with the rhetorical flourishes of a once-great advocate. Holding in favour of Portmarnock Golf Club he tears into the arguments presented by Counsel for the Equality Authority accusing the Authority of seeking to have Portmarnock ‘condemned’ as a discriminating club.

What appears to animate his objection to the case being taken in the first place is the failure of the Authority to comply with a request by a former Minister for Justice, Equality and Law Reform to design a code of practice for golf clubs instead of using targeted litigation to address a particular form of gender discrimination in a particular golf club. This, as Mr. Justice Nial Fennelly rightly points out, is not relevant to a consideration of the central issues raised in the Portmarnock case – whether or not the club came within the exemption for so-called ‘discriminating clubs’ provided for by Sections 8 and 9 of the Equal Status Act. In other words, the sections apply whether or not a code of practice exists and do not exist as some kind of default provision only to be used in the event of non-compliance with a code that enjoys no more than the status of soft law.

Apart from the fact that the point was irrelevant it was also unfair. In the absence of any significant judicial authorities on the delicate balance sought to be struck by Sections 8 and 9 of the Act – this was actually the first such case – it would have been impracticable and speculative to draft a code of practice of anything more than aspirational value. It is noteworthy that by the time the Equality Authority drafted its Code of Practice on Sexual Harassment & Harassment at Work there was voluminous case law on the subject making the exercise altogether more meaningful.

It is quite clear from his judgment that Mr. Justice Hardiman is no fan of the Equality Authority. He criticises it again and again in quite colourful terms describing one of the Authority’s submissions as ‘utterly reductive’ and castigating it for not ‘leaving the members (of Portmarnock) alone to work out their own salvation’.

For a judge, who in cases involving socio-economic rights always insists that the expenditure of public funds is not a matter on which the judicial branch is appropriately qualified to adjudicate, he is trenchant in his criticism of the Authority for using taxpayers’ money for the purpose of litigation ‘especially in times of economic difficulty’. Again, this is quite unfair bearing in mind the totality of the statutory mandate under which the Authority operates which includes the duty to promote equality by various means including litigation. As a creature of statute it is entirely appropriate that such a body should take this part of its mandate seriously and it hardly warrants such vehement disapproval on the part of a judge faced with a demonstrably justiciable issue. For someone who felt the case should never have been taken Mr. Justice Hardiman was at his prolix best in dispensing with it.

Mr. Justice Hardiman is untouchable in terms of expertise when it comes to rules of evidence but he is somewhat promiscuous in taking judicial notice of matters not quite amounting to hard evidence. For example, in looking at single gender associations and clubs he mentions The Emerald Warriors which he describes as a ‘gay mens’ Rugby Club’. A perusal of the website of that club reveals that Mr. Justice Hardiman’s description is itself somewhat reductive. The club is described in the following terms: “…formed in August 2003 to provide gay, heterosexual and bisexual men the opportunity to play competitive rugby in Ireland and internationally.” There is obviously more to gay rugby than meets the judicial eye.

In a genuflection, no doubt, to the status of The Irish Times as a paper of record, he quotes extensively from a 2005 opinion piece by Finola Meredith arguing for women-only spaces. This is then used to support a judicial surmise as to the growing number of women-only clubs in Ireland. Clearly, to borrow from an earlier second-hand phrase of Mr. Justice Hardiman speaking (controversially) at the Law Society’s Justice Media Awards in 2009, the farmer can quote the cowgirl, especially to suit his own ends!

On the actual substantive point of statutory interpretation before the Court Mr. Justice Hardiman is very clever. Section 8 of the Equal Status Act sets out the circumstances in which clubs can be classified as ‘discriminating clubs’ and section 9 describes how such clubs might be exempted from the adverse consequences that flow from being classified in such terms. This was described accurately by one of the majority judges, Mr. Justice Geoghegan, as ‘elaborate draftsmanship’ that was ‘tiptoeing’ around the constitutional right of freedom of association in order to avoid a finding of unconstitutionality.

Based on earlier and strong authorities on this constitutional right the two (speaking) judges of the majority seem to accord it a strength that it may not deserve on a more complete reading of the text of the Constitution itself. While there is undoubtedly a clear constitutional protection of the liberty to exercise this right, subject to public order and morality, there is also provision for limiting its exercise by way of regulation and control in the public interest as long as this does not contain ‘political, religious or class discrimination’. In the same constitutional provision there is a guarantee of equality before the law that allows the state, in its enactments, to take account of ‘differences of capacity, physical and moral and of social function’.

Clearly, the draftsman had some tiptoeing to do in seeking to achieve the purpose of Sections 8 and 9 – using significant statutory leverage to end discriminatory practices by registered clubs – but that task might have been overstated given the equality guarantee contained in the very same constitutional provision. It is true that Irish equality jurisprudence to date is not rich but that is not to say that the Constitution, on an alternative and more progressive reading, cannot provide for a stronger constitutional balance between equality and other rights.

Reading the judgments in the Portmarnock case, and bearing in mind that they were not concerned with the constitutionality of Sections 8 and 9 of the Equal Status Act, one could be forgiven for thinking that construing those statutory provisions involved a consideration of just one constitutional right, that of freedom of association. This also applies to Hardiman’s consideration of the analogous provision of the European Convention on Human Rights, Article 11, where no mention is made of Article 14 which prohibits discrimination on an open-ended basis in the exercise of the rights protected by that Convention, including Article 11.

It might, of course, be argued that none of this was directly relevant in a case involving no more than statutory interpretation but Mr. Justice Hardiman, in particular, goes into considerable detail in isolating freedom of association as a core constitutional norm that is vulnerable, in some unusual sense, to any attempt by the Oireachtas to limit its exercise by means of anti-discrimination legislation enforced by a quango.

By contrast, Mr. Justice Fennelly (dissenting) upholds the original decision of District Judge Mary Collins to categorise Portmarnock as a ‘discriminating club’ in a plainly clever judgment that is unconcerned with protesting its cleverness. Rather than parsing and analysing the individual words – ‘principal’, ‘cater’, ‘only’ and ‘needs’ – in Section 9, he agrees with the literal statutory interpretation applied originally by the District Court. Applying the ordinary and plain meaning of the words in Sections 8 and 9 he finds that the principal purpose of Portmarnock Golf Club is the playing of golf and not catering only for the needs of men who play golf. Because the club permitted women to play subject to certain conditions, both minority judges (Fennelly and Denham) were unconvinced that the club could claim the exemption offered by Section 9 on the basis that its principal purpose was to cater only for the needs of men.

Judges Hardiman and Geoghegan (supported, presumably, by Ms. Justice Macken) reject this aspect of the minority reasoning on the basis that there is a distinction in law between how the club conducts its external relations with those seeking to use its services (i.e. non-members) and how it regulates its internal affairs structured through membership. That is, of course, correct, but it does not necessarily determine the central point of the case challenging the denial of membership or the right to participate in the internal affairs of the club to one gender. It was precisely because women could only engage in ‘external relations’ with the club that the case was taken and, on any purposive understanding of the Equal Status Act, sections 8 and 9 would have to be seen as an attempt, however clumsy, by the Oireachtas to redress this overt discrimination.

To borrow from the parlance of US Supreme Court watchers (especially those who watched Justice Sandra Day O’Connor), both sets of judgments might be categorised as ‘minimalist’ as they confine themselves essentially to statutory interpretation. However, Hardiman’s is far from minimalist in its reasoning. The judicial exercise of statutory interpretation is not the robotic application of words to situations. As stated by Mr. Justice Geoghegan at the end of his judgment: “Even when adopting the traditional literal interpretation, however, a court does not do so in a vacuum. If there are problems of interpretation it must always bear in mind, context.”

Litigation by a statutory body such as the Equality Authority is always open to ridicule and trivialisation. Those who seem sentimental about the passing of political incorrectness always construe such litigation as ‘political correctness gone mad’. It’s classic backlash stuff and follows predictably upon equality advances. It is disappointing that the Supreme Court failed, by an unconvincing majority, to give effect to the wishes of the Oireachtas to open the membership of men-only golf clubs to the other half of the population. That disappointment is compounded by the official reaction of the Equality Authority – where regime change has evidently impacted – welcoming the judgment for clarifying the law.

Donncha O’Connell is a Senior Visiting Fellow at the Centre for the Study of Human Rights, LSE. He is on sabbatical leave from the School of Law, NUI Galway where he teaches Constitutional Law and European Human Rights.