The Belfast Court of Appeal has ruled that same-sex couples who were prohibited from marrying prior to recent changes in law were discriminated against on the grounds of sexual orientation.
Grainne Close and her same-sex partner Shannon Sickles, as well as same-sex couple Christopher and Henry Flanagan-Kane, were the appellants in the case. Both couples entered into civil partnerships in 2005 and expressed a desire to marry. They were denied the possibility to do so by Article 6(6)(e) of the Marriage (Northern Ireland) Order 2003.
The Northern Ireland Assembly rejected of the introduction of same-sex marriage four times, before finally reaching a narrow margin in favour of same-sex marriage in November 2015. However, the Democratic Unionist Party lodged a petition of concern and the motion to introduce same-sex marriage was put on hold.
The couples’ legal teams applied for judicial review in early 2017. However, the application was dismissed by Justice O’Hara in the High Court finding that the European Court of Human Rights did not impose an obligation on a State to provide access to same-sex marriage, leaving it for the Stormont administration rather than the courts.
The appeal was centred on the couples’ claim that the people of Northern Ireland’s human rights had been breached because they were not included in the decision-making process for legislation concerning the introduction of same-sex marriages.
The Court of Appeal agreed that the case law of the European Court of Human Rights (ECtHR) under Article 8 (respect for family and private life) and 12 (right to marry) did not establish a right to same-sex marriage. Therefore, it was for the Court to decide what margin of appreciation was enjoyed by States in the application of Article 14 (right not to be discriminated against).
The Court noted that Northern Ireland provided for “separate but equal status” for same-sex couples by providing for civil partners as an opportunity to reflect a commitment corresponding to marriage – a policy supported by the case law of the ECtHR. The Court rejected, however, that civil partnership and marriage conferred the same core rights. The Court stated that there was a difference between them that required justification.
The Court acknowledged that there was still some ambivalence about the entitlement of such rights until recent years. It was apparent that the Assembly primarily objected to the introduction of same-sex marriage in order to uphold a cultural tradition. The Court was of the view that during this period a fair balance had been struck between the rights of the appellants and the interest of the community in the legitimate aim of preserving the established nature of marriage.
Comparisons were then drawn between Northern Ireland and the Republic of Ireland, and also Scotland, as same-sex marriages were permitted in those two countries by 2015. The Court was of the view that these changes were of considerable significance in the jurisdiction given longstanding ties, and “increasingly called into question the balance between the interests of those favouring tradition and the interests of those denied the opportunity to be seen as equal and no longer separate.”
The Court was satisfied that by the time the first instance decision of the High Court was delivered in August 2017, ‘the absence of same-sex marriage in this jurisdiction discriminated against same-sex couples, …a fair balance between tradition and personal rights had not been struck …therefore the discrimination was not justified”.
However, the Court concluded there was no need to make a formal declaration of any human rights breach in light of recent changes in law which allow same-sex couples to marry.
Click here for the decision.