“ I do not accept this view either as a general philosophical proposition concerning the purpose of law or as having particular reference to a right of privacy under our Constitution. I regard the State as having an interest in the general moral well being of the community and as being entitled, where it is practicable to do so, to discourage conduct which is morally wrong and harmful to a way of life and to values which the State wishes to protect A right of privacy or, as it has been put, a right "to be let alone" can never be absolute. ”

“ At the core of the plaintiff's challenge to the impugned legislation is the assertion that the State has no business in the field of private morality and has no right to legislate in relation to the private sexual conduct of consenting adults. It is the plaintiff's case that to attempt to do so is to exceed the limits of permissible interference and to shatter that area of privacy which the dignity and liberty of human persons require to be kept apart as a haven for each citizen. ”

“ Justice Walsh said:- "Articles 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection. The individual has natural and human rights over which the State has no authority; and the family, as the natural primary and fundamental unit group of society, has rights as such which the State cannot control. ”

“ Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality, which is, in brief and crude terms not the law's business. ”

“ The plaintiff contends that the prohibition, in respect of the offence of gross indecency, of homosexual conduct between male persons only constitutes in two respects a discrimination which is invidious and unfair against such male citizens who are homosexual. In the first place he contends that such a prohibition ignores the sexual conduct involved in adultery, seduction and fornication, which are outlets open to heterosexual male citizens and, on that account, puts male homosexuals in a position of inequality before the law. ”

“ However, I do not agree with the defendant's submission that the plaintiff lacks standing to complain merely because he has not been prosecuted nor has had his way of life disturbed as a result of the legislation which he challenges. In my view, as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in, such right, if it exists, is threatened and the plaintiff has standing to seek the protection of the Court. ”

“ Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution. In the United Kingdom the decisive factor in bringing about decriminalisation of homosexuality was the acceptance of the view advocated by the Wolfenden Committee, and repeated in this case by the plaintiff, that homosexuality was concerned only with private morality and that the law had no business in entering into that field. Whether such a view can be accepted in Ireland depends not on what was done by a sovereign parliament in the United Kingdom but on what our Constitution ordains and requires. ”

“ With homosexual conduct, the matter is not so simple or clear. Such conduct is, of course, morally wrong, and has been so regarded by mankind through the centuries. It cannot be said of it, however, as the plaintiff seeks to say, that no harm is done if it is conducted in private by consenting males. Very serious harm may in fact he involved. Such conduct, although carried on with full consent, may lead a mildly homosexually orientated person into a way of life from which he may never recover. As already indicated, known consequences are frustration, loneliness arid even suicide. ”

“ 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. ”

“ Recognizing that law and morality are not severable, indeed that there must be an interdependence between them, that while the end of law is not the enforcement of morality or the proscription of immorality, both witnesses were at one in concluding that legal restraints, particularly those compounded by criminal sanctions for their breach, are justified only when the common good requires them. ”

“ I would not think it unreasonable to conclude that an open and general increase in homosexual activity in any society must have serious consequences of a harmful nature so far as marriage is concerned. ”

“ Those risks are not the normal lot of the fornicator, the adulterer, the sexually deviant married couple, the drunkard, the habitual gambler, the practising lesbian, and the many other types of people whose propensities or behaviour may be thought to be no less inimical to the upholding of individual moral conduct, or to necessary or desirable standards of public order or morality, or to the needs of a healthy family life, or to social justice, or to other expressed or implied desiderata of the Constitution. ”

“ The act which constitutes buggery can only be committed by males. It is designated as a crime whether it is committed with a male or a female. It follows that the prohibition applies to the act irrespective of whether it is committed by a homosexual or by a heterosexual male. No discrimination could be involved. As to gross indecency, however, the prohibition only applies to such conduct between males. Does the fact that it does not apply to gross indecency between females involve a discrimination which would be prohibited by Article 40, section 1? ”

“ The first constitutional provision that is said to be violated by the impugned sections is Article 40, section 1. It is argued that the equality before the law thereby guaranteed is not given effect to when, as is the case, homosexual acts between male homosexuals are made criminal, while homosexual acts between female homosexuals, or deviant sexual acts (such as buggery) between married couples which would generally be considered debased and immoral, are left outside the purview of the criminal law, at least in regard to wives and when committed in private. ”

“ As long ago as 1957 the Wolfenden Committee acknowledged, in relation to Great Britain, the serious harm such conduct caused to marriage not only in turning men away from it as a partnership in life but also in breaking up existing marriages. ”

“ Section 11 of the Act of 1885 provides as follows:- "Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour." ”

“ Professor West in his work, Homosexuality Re-Examined, states at p. 318:- "Exclusive homosexuality forces a person into a minority group; cuts off all prospect of fulfilment through a family life with children and hampers participation in mainstream social activities which are mostly geared to the needs of heterosexual couples." ”

“ The case for the present plaintiff is based on the fact that he is permanently and exclusively homosexual. Therefore, no question can arise of prejudice to him in respect of marital privacy, and it seems to follow from the decision in Cahill's Case that he is not entitled to rely on this ground to challenge the constitutionality of the sections. If the statute is challenged by married persons, they may be able, from the nature of their marriage relationship, to present a case on facts and circumstances which do not arise in the present case. ”

“ To do so, it must be shown that it is a right that inheres in the citizen in question by virtue of his human personality. The lack of precision in this test is reduced when sub-s. 1 of s. 3 of Article 40 is read (as it must be) in the light of the Constitution as a whole and, in particular, in the light of what the Constitution, expressly or by necessary implication, deems to be fundamental to the personal standing of the individual in question in the context of the social order envisaged by the Constitution. ”

“ Everyone has the right to respect for his private and family life his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”

“ The preamble to the Constitution proudly asserts the existence of God in the Most Holy Trinity and recites that the people of Ireland humbly acknowledge their obligation to "our Divine Lord, Jesus Christ." It cannot be doubted that the people, so asserting and acknowledging their obligations to our Divine Lord Jesus Christ, were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs. ”

“ Homosexuality has always been condemned in Christian teaching as being morally wrong. It has equally been regarded by society for many centuries as an offence against nature and a very serious crime. (2) Exclusive homosexuality, whether the condition be congenital or acquired, can result in great distress and unhappiness for the individual and can lead to depression, despair and suicide. (3) The homosexually orientated can be importuned into a homosexual lifestyle which can become habitual. ”

“ In the second place the plaintiff says that gross indecency, as an offence, is confined to sexual conduct between males. Similar or associated sexual conduct between female citizens who have a homosexual or lesbian disposition is not prohibited. On this account the plaintiff complains that the section creating the offence discriminates against male homosexuals solely on the ground of their sex and in a way which is unrelated to any difference of capacity, physical or moral, or of social function. ”

“ What is deemed necessary to his dignity and freedom by one man may be abhorred by another as an exercise in immorality. The pluralism necessary for the preservation of constitutional requirements in the Christian, democratic State envisaged by the Constitution means that the sanctions of the criminal law may be attached to immoral acts only when the common good requires their proscription as crimes. ”