Written By: Steve Williams 7/12/15
Northern Ireland is now the only place in the mainland UK without marriage equality, but thanks to a new round of legal challenges, there may still be hope for change within the next few years.
Earlier this year the High Court granted permission for two couples, Grainne Close and her partner Shannon Sickles and Chris and Henry Flanagan-Kane, to challenge Northern Ireland’s ban on same-gender marriage. These couples hold a place in history as, just over a decade ago, they were among the very first couples in the entire UK to enter into civil partnerships. Both couples say they now want to enter legal marriages, something that anywhere else in the UK is now legal. However, in Northern Ireland it’s a different story.
At the very beginning of November Northern Ireland’s lawmakers voted–albeit by a very slim majority–in favor of marriage equality, this after having rejected the issue at least three times in recent years. In any other circumstance that vote would have been a cause for celebration. However, because of the complex nature of Northern Ireland’s lawmaking process, which goes to great lengths in order to ensure that the power balance between Protestants and Catholics never tips too far one way, the presiding Democratic Unionist party was able to use what is known as a parliamentary veto in order to prevent a change in the law being triggered.
This angered human rights groups who point out that this had nothing to do with favoring one religious denomination over another, which is what that mechanism was designed to prevent, and everything to do with abusing the political system in order to prevent a change that religious conservatives oppose.
Until now the courts had appeared reluctant to intervene in this mess, especially before the Republic of Ireland legalized marriage equality by a popular vote. However, now that Northern Ireland stands alone within the mainland UK as the only place where marriage equality cannot be accessed, and because Northern Ireland’s Democratic Unionists have shown they will go to great lengths to keep any change from happening despite a majority voting in favor, same-gender couples appear to be left with no other choice than to go to the courts. The High Court actually granted review in June, and the issue now takes on fresh urgency after the veto.
As such, the Belfast court heard the couples’ lawyers argue last week that the ban directly infringes the couples’ human rights:
“Northern Ireland stands out as effectively a blot on the map which suggests to the rest of the world [it remains] a backward-looking and divided society,” said the couples’ lawyer.
“It’s nothing less than state discrimination of a class of people who have been marginalized for many years.”
He added: “It’s demeaning and offensive that their unions have been relegated to a second-class status, namely civil partnerships.”
There is a second ongoing case that is also being argued in the courts where a same-gender couple whose identities have not been disclosed are seeking recognition of their marriage that was entered into in England. The couple, who are citizens of Northern Ireland, argue their relegation to civil unions is for no other reason than to inflict moral disapproval and leaves them arbitrarily without the dignity of marriage. Barrister Karen Quinlivan QC put the denial of rights in stark terms during her opening remarks to the court back in November, saying: “The petitioner and his spouse find themselves in a particularly arbitrary situation where lawful marriage is stripped from them whenever they reside in Northern Ireland, returning and disappearing as they cross state lines.”
In both cases the government is arguing that while the denial of marriage is obviously intentional this does not add up to a denial of human rights because Northern Ireland fulfills the criteria set out by the European Convention of Human Rights under Article 8 by giving couples all the same legal rights as opposite gender couples. This is, of course, an ongoing issue with the European courts because they have refused to definitively mandate that states must provide for same-gender marriage. Will that be the case here?
There is some cause to think that the peculiarities of this case may provide cause for a narrow ruling and an exemption to that trend without affecting the general line of argument. Due to the fact that Democratic Unionists used extraordinary measures to prevent a change in the law that would have provided same-gender marriage rights, it could be argued they disenfranchised Northern Ireland’s voting public, whom polls show support same-gender marriage by a significant majority, and left same-gender couples without an ability to actually trigger any change in the law.
An initial ruling on these cases is due in the new year. Whatever the outcome any decision will be appealed as far as either side can take it, meaning that Northern Ireland’s same-gender couples may continue to be deprived of the right to marry for some time yet.