Equal marriage amendment enacted too fast, court implies

The Electoral Acts may need to be amended after the Supreme Court said difficulties were caused by the same-sex marriage referendum being signed into the Constitution before it could consider a challenge to the result.

The Chief Justice, Mrs Justice Susan Denham, and two other judges on the court delivered a mild rebuke to the Government this week when they held the actions that gave constitutional application to the referendum results might have caused “very serious constitutional consequences”.

In the judgment, Mrs Justice Denham, Mr Justice Adrian Hardiman and Mr Justice Donal O’Donnell highlight the need for organs of State to give “respect due to the legal process”.

Appeals refused

The court, in determinations, refused appeals by two lay litigants against the refusal of the High Court, and also of the Court of Appeal, to grant them leave to challenge the result of the referendum.

However, the final certificate had been issued at the end of August, and the Bill signed into the Constitution by the President. The Supreme Court said that because the litigants did not succeed, the argument was “moot”, but suggested that if they had succeeded it would have led to serious difficulties.

A spokesman for the Department of the Environment said: “Electoral and referendum Acts are subject to constant review in the light of various experiences. The determination of the Supreme Court will be considered in this context.”

The same-sex marriage referendum was passed in May 2015.

Following the determination of the Court of Appeal at the end of July, the lay litigants did not seek a stay, or a delay, in the implementation of that decision. Instead, they applied for leave to take the case to the Supreme Court on August 27th, which was within the allowed 28 days. However, in the meantime, the process to enshrine the amendment in the Constitution had taken place.

Litigants

There was an inherent criticism by the judges that the process to formally enshrine the amendment in the Constitution continued even though the issue was still before the courts.

In the judgment, the sequence of events is laid out. After the result, the returning officer issued a provisional certificate. On August 24th, the officer received written notification that no leave was granted by the High Court to present a referendum petition. The officer endorsed on the certificate that the result had become final on August 28th, as required by the Electoral Acts. The following day, the amendment was signed by President Michael D Higgins.

However, on August 28th, the applicants sought leave to challenge the results in the Supreme Court.