Gay couples lose legal challenge to North’s marriage ban
Judge says it is the role of the Executive and the Assembly to decide social policy
Shannon Sickles (R) and Grainne Close and Chris Flanagan (L) and Henry Edmond Kane leaving the High Court in Belfast. Photograph: Brian Lawless/PA Wire
Two gay couples have lost their landmark legal challenge to Northern Ireland’s ban on same-sex marriage.
Mr Justice O’Hara said: “It’s not the role of a judge to decide social policy, that is for the Executive and the Assembly under our constitution.”
Grainne Close, her partner Shannon Sickles, and Chris and Henry Flanagan-Kane took legal action in a bid to have the ban lifted.
But unlike the rest of Britain and the Irish Republic, Northern Ireland has still not legalised same-sex marriage.
Stormont MLAs have voted five times on the issue - with a narrow majority in favour of the move on the last occasion in November 2015.
However, the Democratic Unionist Party deployed a petition of concern mechanism to block the motion and prevent any change in the law.
Lawyers representing the two couples claimed they are suffering state discrimination after being marginalised all their lives.
They argued that the repeated refusal to legislation breaches their entitlement to family life and marriage under the European Convention on Human Rights.
‘A blot on the map’
In proceedings issued against the Department of Finance and Personnel, Northern Ireland was described as “a blot on the map” seen by the rest of the world as backward-looking and divided.
Being relegated to the second-class status of civil partnerships is demeaning and offensive to the couples’ unions, it was contended.
According to their case, the ban is having a “corrosive” impact on society.
Counsel for the Stormont department under challenge insisted the two couples have suffered no grave breach of their human rights.
He also denied there has been any “legislative inertia” on the issue.
Delivering judgment in front of a packed courtroom, Mr Justice O’Hara acknowledged the “compelling evidence” of how the gay and lesbian community has long suffered less favourable treatment.
He cited the insults, psychiatric damage and exclusion endured by its members.
But the judge stressed that the challenge was going against all recent European case law.
“If there’s a move it’s undoubtedly towards recognition of same-sex marriage,” he said.
“Unfortunately, from the applicants’ perspective, there’s no sign of the Strasbourg court [Eurpean Court of Human Rights] moving in that direction.”
The legal challenge does not fall into the limited category of circumstances warranting judicial intervention, he held.
Mr Justice O’Hara added: “Put simply, the Strasbourg court has not recognised any right to same-sex marriage.”
With any bid to achieve such status now resting with Stormont, he concluded by saying: “I hope when the Assembly next sits to consider this issue those with the responsibility of voting will read the evidence in this case.”
Further blow to LGBT community
Separately another verdict represented a further blow to the North’s LGBT community.
A gay couple whose marriage in England is only recognised as a civil partnership in their native Northern Ireland has suffered no human rights breach, Mr Justice O’Hara ruled on Thursday.
The two men claimed they were subjected to discrimination by having their relationship “downgraded”.
But Mr Justice O’Hara found there had been no violation under European law.
He said: “The Strasbourg court has held that same-sex marriage is not even a (European) Convention right.
“While it’s open to government and parliament to provide for it, they are not obliged to do so and whether they do so is a matter for them, not the courts.”
Granted anonymity in the case, the petitioner ‘X’ and his husband married in London in September 2014.
But under current laws they can only be classified as civil partners in Northern Ireland.
They were seeking a declaration that their marriage remains fully constituted throughout the UK.
Being limited to civil partnership status within Northern Ireland amounts to unlawful discrimination, according to their case.
The petition, backed by gay rights group The Rainbow Project, was taken against the Northern Ireland Assembly and the UK Government.
Lawyers for X and his husband claimed their rights to privacy and family life, religious freedom and entitlement to marry under the European Convention on Human Rights have all been violated.
But counsel for UK’s Government Equality Office (GEO) countered that there was never intended to be a “one size fits all” approach to the issue across the regions.
He insisted that a gay couple’s ability to get married in England and Wales was a matter of policy rather than a legal obligation.
Backing those submissions, Mr Justice O’Hara said: “The judgment I have to reach is not based on social policy, but on the law.”