Challenge to same sex marriage result rejected

Judge dismisses argument that citizens who did not vote in effect ‘voted’ against proposal

Two men have been refused permission by the High Court to bring petitions challenging the Yes result of last month's same sex marriage referendum.

The President of the High Court, Mr Justice Nicholas Kearns, said neither Gerry Walshe nor Maurice J. Lyons had met the requirements for bringing a petition as set out in the 1994 Referendum Act.

The critical test was whether the issues referred to by the applicants were such as would have had a material effect on the referendum result as a whole, he said.

This was a high threshold as was appropriate when it was sought to interfere with the will of the people who are sovereign as Mr Lyons pointed out, the judge said.


It was also appropriate for a significant amendment which could affect the rights of citizens who for reasons including serious illness may wish to marry as soon as possible.

The burden of proof was on the applicants and the threshold was even more difficult to meet when the majority Yes vote in this referendum exceeded the No vote by almost half a million people, the judge said.

Those requirements include prima facie evidence of a matter such as would have materially affected the outcome of the referendum as a whole.

Arguments by Mr Lyons that the amendment conflicted with the Christian ethos of the Constitution went to the content of the amendment, an area the court had no power to address, he said.

Mr Lyons’ case was this amendment would create conflict with other provisions of the Constitution, specifically those relating to the position of women in the home and that represented a departure for the intent of the drafters.

The court cannot get into an analysis of the correctness or otherwise of the people’s decision to pass the amendment and cannot trespass on the will of the people, he said.

The judge also dismissed other arguments by Mr Lyons that those citizens who did not vote had in effect voted No and therefore the sovereign people had not approved this amendment.

He rejected further arguments people were inadequately informed of the proposal.

None of the grounds advanced by Mr Walshe met the high threshold set out, he also ruled. Mr Walshe based his claim of partiality by the Government on photos of Yes posters put up by Fine Gael and Labour outside supermarkets in his native Co Clare but this could not possibly constitute evidence of partiality or wrongful allocation of public funds by the government, the judge said.

The relevant law was the Government cannot allocate central funds to advocate a position in a referendum but that did not prohibit the Government campaigning for a Yes vote, he said.

Issues about the content of ballot papers also could not be raised in this application, he said.

Both Mr Walshe and Mr Lyons opposed applications by the State and Referendum Commission for costs against them on grounds they brought their applications on behalf of the people and the national interest.

The judge ruled there were no exceptional circumstances in this case which would allow costs not be awarded against the applicants. He added he might have come to a different conclusion had a significant point been raised.

Such challenges should not be lightly taken particularly when the people had expressed their view in a very clear way as they had in this referendum, he added.

In opposing both applications, the State had argued there were no grounds for a petition and the matter should be speedily determined as it could affect same sex couples who, for reasons of serious illness, might wish to marry as soon as possible.

Following endorsement of the May 22nd referendum proposal, the government has said it hopes the necessary legislation will be in place to allow for same sex marriages to take place by the autumn.

Earlier, outlining his arguments, Mr Lyons, a gardener with an address at Callan, Co Kilkenny, said his case was about the sovereignty of the Irish people. This amendment was repugnant to the Constitution as it would introduce uncertainty and not a proposal the sovereign people could consent to.

The rights of the sovereign people are settled, only the sovereign people can propose a change and there was no evidence the government’s referendum proposal was supported by the sovereign people.

It was “an act of mutiny” for the State to make such a proposal which would involve the people expending their own monies in defending their rights, he said. There was no power under which the State could require the sovereign people to attend at a polling booth to vote no and an abstention is the same as a No vote in that it means a citizen is “declining to approve”.

The Constitution provides every family contains a woman and the referendum proposal conflicts with that, he said. There must be a remedy for such a conflict, the family is “an ordered institution for the common good” and not a creation of the State.

The Preamble to the Constitution couches the Constitution firmly as having a Christian ethos, he said. The centrality of God’s plan for creation, involving a man and woman, is denied by this proposed amendment which conflicts with that Christian ethos, he added.

There was on the face of the amendment such a “stark staring mad” tension between it and the constitution there must be a remedy for it, he argued.

In his arguments, Mr Walshe, an electrician of Lisdeen, Co Clare, said this was not “an anti-gay issue” but about a failure to adhere to fair procedures in the referendum process.

He said he believed monies for Yes posters of the Fine Gael and Labour government parties had come from the central fund. It was “obvious” monies were used to promote a Yes vote in breach of the McKenna principles prohibiting the use of public monies to advocate for one side in a referendum, he argued.

In his opposing arguments, Richard Humphreys SC, for the State, said there is a high hurdle to overcome to bring a petition challenging a referendum result. It was appropriate the hurdle was high given the 1.9 million voters who participated in this referendum and the decisive result in favour of the referendum proposal, he said.

Mr Walshe’s arguments about expenditure involved a failure to distinguish between spending by political parties and by government, he said.

If there were more Yes posters, which had not been established in evidence, that would just reflect the support by all of the main political parties for the proposal.

The Referendum Commission has no role in policing government expenditure and no issues in that regard arose in this case, he added.

It was abundantly clear the court had no power to explore arguments related to the content of a proposed referendum, counsel argued. Arguments about content had to await enactment of legislation and did not go to the validity of the amendment. The purpose of an amendment is to change something that’s there so there would almost automatically be a tension, he added.

Brian Murray SC, for the Referendum Commission, said his client should not have been made a party by Mr Walshe to his proceedings.

The Commission has no function concerning the content of the referendum proposals and it had complied with its functions to produce information about the referendum, counsel said. It had set out the precise text of the proposed amendment and elaborated on and explained its terms and that was a proper and adequate discharge of its obligation to provide information.

The fact the Constitution refers to mothers does not mean every family has to be composed in that way, counsel also argued. Even if it did, it was not a ground on foot of which a petition could be brought, he added.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times