Sunday, 31 March 2013

Same-Sex Marriage in Ireland

The Irish Government has established a Constitutional Convention to consider a number of possible changes to the Irish Constitution. These issues are varied and include changes to the electoral system, the removal of the offence of Blasphemy, and provisions for same-sex marriage. The latter may or may not be precluded by Article 41 of the Constitution as currently worded.

Changing Attitude Ireland has made a written submission to the Convention, which can be read or downloaded as a PDF. Here’s the Executive Summary:

  • CAI strongly supports the extension of civil marriage to same-sex couples.
  • The existing inequalities between civil partnership and civil marriage have a realworld detrimental impact on the lives of same-sex couples, and even more on children being raised by them.
  • Allowing churches and other faith groups to ‘opt in’ to registering same-sex marriages, while protecting them from any attempt at compulsion, is the best way to respect the religious freedoms of both those who support and those who oppose same-sex marriage. This is particularly important in the Irish context, where there is a history of civil marriage law being used to discriminate against religious minorities.
  • Like many other Christian bodies, CAI supports marriage equality not despite its faith background, but because of it, believing marriage and stable relationships to be one of the bedrocks of society.
  • Although there is significant faith opposition to marriage equality, this must be understood in the light of the long Christian history of opposition to equality under the law and outright homophobia.

Meanwhile, in Northern Ireland the Guardian reports Northern Ireland’s ban on gay marriage to be challenged by Amnesty in court.

Amnesty International and gay pressure groups have warned that Northern Ireland’s power-sharing government will soon face a human rights legal case over its refusal to allow gay couples to marry.

Unionist parties have voted at Stormont to ensure Northern Ireland is the only part of the UK where lesbian, gay, bisexual and transgender (LGBT) people are excluded from the same-sex marriage bill, which was passed in the Commons in February…

Paul Johnson at ECHR Sexual Orientation Blog has more legal detail: ECHR complaint is likely if same-sex couples cannot marry in Northern Ireland.

Possible court action could be brought under the Human Rights Act in the domestic courts and, if that failed to remedy the situation, a complaint could be made to the European Court of Human Rights. Such a complaint to the Court would present a novel legal issue which it has hitherto not considered: the existence of different arrangements for same-sex marriage within a nation state. Whilst the Court has so far been reluctant to recognize a right to same-sex marriage under Article 12 of the Convention, the existence of differences in treatment in marriage within the jurisdictions of the UK based solely on sexual orientation could make a more compelling Article 14 case than those argued in previous applications. What would the Court make of a situation whereby citizens of a Council of Europe state could contract same-sex civil marriage in one part of the state but not in another?

Posted by Simon Sarmiento on Sunday, 31 March 2013 at 8:00pm BST | TrackBack
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Categorised as: Church of Ireland | equality legislation

I have long been sceptical of the likelihood that the ECHR will intervene any time soon to introduce marriage equality in NI; it refused to intervene in a French case last year and most European jurisdictions still don't have marriage equality; in Eastern Europe, most still don't have any form of registered partnership. The UK Supreme Court might, although I'm not sure on what grounds.

We were only five votes short of a majority in favour of marriage equality in the NI Assembly last October (a private member's motion with no legal force, but it's the thought that counts). We'll almost certainly have an Assembly majority in place after the next set of elections, but then the DUP will, ironically, use the 'minority protection provisions' of the Good Friday Agreement to veto marriage equality, which they can do with only 28% of Assembly members blocking us.

At that point, I hope people in other parts of this so-called United Kingdom will give a little bit of assistance to those of us living in this political sewer. There is no reason why the Westminster government can't repatriate the power to make laws on marriage in Northern Ireland, and every reason why it should. The opposition is entirely on the Unionist side of the fence, so they have little grounds for complaint if the British government 'imposes' something that a majority of Northern Ireland's legislators have voted for anyway.

Posted by: Gerry Lynch on Sunday, 31 March 2013 at 9:38pm BST

That which may pertain in Northern Ireland is troubling. One could find allowance of equal marriage in Great Britain, the Republic of Ireland but not the devolved Province of Northern Ireland. In addition it would appear that that would likely be the situation for some considerable time due to the cross party voting arrangements. Of particular note would be the contents of the Belfast Agreement and the role played by human rights (I claim no expertise on these).

I think that ths announcement is a bit ahead of itself - after all the bill hasn't even been introduced in Scotland let alone voted on and the England and Wales Bill still winding through the Commons.

I suspect that a key issue here is how autonmous the 'deciders' are; is the UK as regards devolved matters an assemblage of 3 (or 4 depending on the issues) separate compartments (i.e. federal for want of a better word). There are quite a few examples of countries where some subsections recognise same sex marriage (Brazil, Mexico, US and Canada prior to Parliament legislating).

Apart from the danger of going to early (which they seem to be falling into) I think there may be more chance of success with domestic courts than with the ECHR who will probably adhere to the margin of appreciation as in Schalk & Kopf(though it is probably unchartered and a little sui generis).

I do however think a prolonged discrepancy would be highly undesirable, especially as the Westminster is non-devolved and still the Pariament for the whole UK and the devolution settlement is based on human rights and non-discrimination. Ultimately it would be desirable for a way to be found to address the issue.

Posted by: Craig Nelson on Sunday, 31 March 2013 at 9:43pm BST

Godspeed, Ireland, to equality!

Posted by: JCF on Monday, 1 April 2013 at 3:09am BST

A most interesting submission from 'Changing Attitude, Ireland'. One hopes the politicians are listening to a voice of reason.

Posted by: Father Ron Smith on Monday, 1 April 2013 at 10:36am BST

The Roman Catholic bishops of Ireland have also made a submission

Posted by: Simon Sarmiento on Tuesday, 2 April 2013 at 1:58pm BST

So would residents of NI be able to travel to the other parts of the UK, get married, and then return home and be able to enjoy the benefits of marriage?

Posted by: David on Wednesday, 3 April 2013 at 4:14pm BST

David: the England & Wales bill provides that a same sex marriage contracted there will be treated as a civil partnership in NI.

Posted by: Iain McLean on Wednesday, 3 April 2013 at 7:46pm BST

"28.The Catholic Church's position is clear; it does not give recognition to any other
partnerships or legal unions as having an ethical or legal equivalence with marriage.
The Church opposes therefore a change in the definition of marriage to include
same-sex couples or other forms of relationship other than that of the relationship
between one woman and one man. We believe that it would be damaging to the
common good should civil law render same sex unions equivalent to marriage." - R.C. Bishops -

Presumably an "ethical or legal equivalence with marriage" - as far as the Irish R.C.Bishops are concerned - would include any conjugal LGBT or T. relationship, and presumes that they consider same-sex relationships outside the realm of allowable R.C. relationships.

This demonstrates the Catholic Church in Ireland - and presumably elsewhere - is implacable against LGBT people having any sort of monogamous, loving, and faithful relationships akin to marriage.

How does this fit with the modern understanding of the no-fault situation of sexual-orientation?

Posted by: Father Ron Smith on Wednesday, 3 April 2013 at 11:27pm BST

Interesting concise article on the bigotry of anti-marriage equality.

Posted by: Rod Gillis on Thursday, 4 April 2013 at 3:09pm BST
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