A judge in the High Court has dismissed an application from a number of same sex couples challenging the law in Northern Ireland regarding same sex marriage. Same sex marriage is not recognised in Northern Ireland save to the extent that it is treated for the purposes of the law as a civil partnership. Sitting in the High Court in Belfast, Mr. Justice O’Hara held that, in accordance with the jurisprudence of the European Court of Human Rights (ECtHR), same sex marriage is not a right under the European Convention on Human Rights (ECHR).
The applicants in the matter included two same sex couples who had entered into civil partnerships in Northern Ireland as well as a couple who had married in England and now sought recognition of this marriage in Northern Ireland. The Marriage Act 2013 allows for same sex marriage in England and Wales but the law on marriage in Northern Ireland is a devolved issue within the competence of the Northern Ireland Executive and the Northern Ireland Assembly. All three couples argued that the failure to recognise same sex marriage under Northern Irish law was a breach of their rights under the ECHR.
However, in making his decision Mr. Justice O’Hara accepted the interpretation of the Chief Commissioner of the Northern Ireland Human Rights Commission of the jurisprudence of the ECtHR which sets out that “the restriction of marriage to opposite sex couples does not violate the international standards and this is clear from both the international treaties and the jurisprudence of the European Court of Human Rights and the United Nations Human Rights Committee”. Accordingly, he sets out that legislation allowing for equal marriage is not necessary in order for a country to be Convention compliant.
The judge therefore concluded that the provision of same sex marriage is a matter for the legislative and executive branches of government, to be introduced as they see fit. He acknowledges the “frustration” this creates for “supporters of same sex marriage” in Northern Ireland where a majority vote in favour of same sex marriage in the Assembly has failed to allow for its provision due to the special voting arrangements. However, he emphasises that out of respect for the separation of powers it is not for the courts to interfere in matters of social policy.
A summary of the judgement is available here (full judgement not published online yet). Further commentary is available here and here.