High Court of NI refuses to review absence of same-sex marriage

The High Court in Belfast has dismissed two cases challenging Northern Ireland’s ban on same-sex marriage. According to media reports, O’Hara J said that it was for the Northern Ireland Assembly rather than for the judiciary to decide social policy:

“It is not at all difficult to understand how gay men and lesbians who have suffered discrimination, rejection and exclusion feel so strongly about the maintenance in Northern Ireland of the barrier to same sex marriage. However, the judgment which I have to reach is not based on social policy but on the law.”

A joint claim was brought by the first lesbian couple and the first gay couple – Grainne Close and Shannon Sickles and Chris and Henry Flanagan-Kane – to enter civil partnerships in the UK after Northern Ireland became the first part of the UK to make civil partnerships available in December 2005. The second claim was brought by a couple who wed in England and who want their marriage legally recognised at home in Northern Ireland.

According to Paul Johnson on the ECHR Sexual Orientation Blog, O’Hara J was significantly influenced by the fact that the ECtHR has repeatedly held that Article 12 (right to marry and to found a family) enshrines the “traditional concept” of marriage as being between a man and a woman and cannot be construed as imposing an obligation on states parties to provide for same-sex marriage. He reports O’Hara J as saying:

“It is not open to me to give an interpretation of the Convention which is quite different from that of the Strasbourg Court … I must follow clear and constant jurisprudence of the Strasbourg Court.”

There is a summary of the judgment here. We hope to post a note once a full transcript is published.

Cite this article as: Frank Cranmer, "High Court of NI refuses to review absence of same-sex marriage" in Law & Religion UK, 17 August 2017, https://lawandreligionuk.com/2017/08/17/high-court-of-ni-refuses-to-review-absence-of-same-sex-marriage/

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