Legal and Political Difficulties in a Conservative Province.
Northern Ireland is the only jurisdiction in the United Kingdom in which no legislation has been passed to allow for same-sex marriage. Under the terms of the Good Friday Agreement of 1998, legislating for social policy is within the sole competency of the devolved assembly at Stormont. In its most recent vote on the issue in November 2005, the assembly backed equal marriage bill tabled by nationalist parties Sinn Féin and the SDLP by a slim majority. However, nothing is quite so simple as that in Northern Ireland.
The largest party at Stormont, the DUP, are staunch opponents of any move towards marriage equality. With close ties to the fundamentalist Free Presbyterian Church, they have been vociferous in their opposition to social change. In the 1970s and 1980s, then party leader Rev. Ian Paisley led an unsuccessful campaign against the decriminalisation of homosexuality in the province during a period of direct rule from Westminster. This came in the wake of the landmark case of Dudgeon v the United Kingdom in which the European Court of Human Rights found that the continuing criminalisation was in breach of Mr Dudgeon’s Article 8 right to a private and family life.
The terms of the Good Friday Agreement allowed the DUP to file a “Petition of Concern”, a mechanism intended to protect minority rights from the blunt instrument of majority voting. Once signed by 30 assembly members, it requires an overall assembly majority of 60% for legislation to pass, with at least 40% of Unionists voting in favour. In the current political landscape, such figures are unachievable, with the vast majority of Unionists opposed to the measure. However, with the DUP having only 28 seats since this year’s assembly elections, they will depend on the support of other Unionists to file a petition in future.
With a legislation for equal marriage at Stormont appearing unlikely for the time being, three same-sex couples brought an action at the High Court in Belfast claiming a breach of human rights. The first couple in the application, known as plaintiffs, were married in London and are domiciled in Northern Ireland and seek to have their marriage recognised as such there. The second and third plaintiff couples entered into civil partnerships in Northern Ireland and now wish to marry.
The plaintiffs sought a declaration that the government of Northern Ireland had failed to vindicate their Article 8 rights to a private and family life and Article 12 rights to marry and to found a family under the European Convention on Human Rights by refusing to legislate for equal marriage. These arguments were rejected by Mr Justice O’Hara by reference to previous decisions of the European Court of Human Rights in Strasbourg.
There is, as yet, no jurisprudence from the Strasbourg Court to support the proposition that same-sex marriage is a right under the European Convention. Similar arguments were raised in the 2010 case of Schalk and Kopf v Austria, in which the Strasbourg court stated that same-sex marriage is not a convention right and that Article 12 applies to opposite sex couples only. The Court on that occasion noted that there was little consensus between contracting states on whether to allow equal marriage and further that it was a social policy area in which individual member states enjoyed a broad margin of appreciation. However, the court on that occasion was more equivocal in approach to Article 8 (private and family life) and Article 14 (prohibition on discrimination) rights.
In dismissing the claim, Mr Justice O’Hara referred to the “clear and constant jurisprudence” of the Strasbourg court on the matter and stated that it was not open to him to reinterpret the convention in way that was different to that of the Strasbourg court. Further, he stated it could not be argued that it was likely that the Strasbourg court would come to a different conclusion should the issue be revisited there in light of its “clear, repeated and recent rulings” on the matter.
Where Next for Equal Marriage Campaigners?
There has been a remarkable rate of progress since the 2010 decision in Schalk, with Germany recently becoming the latest country to join the club of marriage equality. However, the fact remains that Europe is sharply divided on same-sex marriage. While almost every state in northern and western Europe now allows same-sex marriage, few states in central, eastern or south-eastern Europe do. Indeed, many states maintain constitutional bans on same-sex marriage.
The plaintiffs have announced their intention to appeal the decision. However, the decision of the High Court appears to be correct based on the arguments advanced and the prior decisions of Strasbourg court. Indeed, previous Strasbourg decisions will actively prevent domestic judges, whether in the Court of Appeal for Northern Ireland or the Supreme Court in London, from taking an interventionist approach in what is ultimately the responsibility of the Stormont assembly. A successful court challenge would ultimately require the Strasbourg court to revisit the issue once again and reverse its previous view.
With the Stormont assembly currently in abeyance due to the breakdown of power-sharing between Nationalist and Unionist parties, it will be some time before the issue is debated there again. If power-sharing cannot be restored, it is possible that Northern Ireland will be ruled directly from Westminster, although all parties have stated that this is the worst-case scenario. Some equal marriage campaigners may see this as an opportunity in adversity, as legislation could be passed bypassing Stormont. However, with a delicate political situation in Northern Ireland and a Conservative government dependant on DUP support in Westminster, such a move is highly unlikely.
Whether the path to equal marriage in Northern Ireland is pursued politically or through the courts, it is clear that there is a long and uncertain battle ahead while the DUP continue to dominate the political scene in Ulster and the courts, whether in the UK or Strasbourg, are unwilling or unable to intervene.