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Gay marriage ban is 'no grave breach of human rights' for Northern Ireland couples, court hears

By Alan Erwin

Published 04/12/2015

Grainne Close and Shannon Sickles arrive at Belfast High Court
Grainne Close and Shannon Sickles arrive at Belfast High Court

Two gay couples barred from getting married in Northern Ireland have suffered no grave breach of their human rights, the High Court heard today.

Counsel for the Stormont department under challenge in a landmark case also denied there has been any "legislative inertia" on the issue.

Grainne Close, her partner Shannon Sickles, and Chris and Henry Flanagan-Kane are taking legal action in a bid to have the ban lifted.

In 2005 they became the first couples in the UK to enter civil partnerships in ceremonies at Belfast City Hall.

Since then same-sex marriage has been legalised in England, Scotland, Wales and the Republic of Ireland.

But the prohibition remains in place within Northern Ireland.

Even though Stormont voted last month in favour of changing the law to allow same-sex marriage, the Democratic Unionists used a petition of concern to block any amendment.

The two couples claim the continued ban breaches their entitlements to family life and marriage under Article 8 of the European Convention on Human Rights.

Their lawyers described the situation as demeaning and offensive, contending that it is having a corrosive impact on society.

Mr Justice O'Hara was told the situation amounted to state discrimination of a class of people who have been marginalised all their lives.

However, Tony McGleenan QC, for the Department of Finance and Personnel, insisted rulings from the Grand Chamber of the European Court of Human Rights backed the view that no significant Article 8 breach has occurred.

"All of the applicants are civil partners, they enjoy all the rights and benefits that go with that," he told the court.

"What they are looking is the ability to call their relationships a marriage.

"No doubt that causes consternation and concern, confusion is how the applicants put it in their affidavit, but is it an interference with their Article 8 rights? We say it's not."

Mr McGleenan argued that legislative activity has continued since civil partnership became lawful in 2004.

The UK Parliament introduced the Marriage (Same-Sex Couples) Act 2013, with express provisions for Northern Ireland.

"This is not an area where there's been legislative inertia," the barrister said.

"It may be right the applicant's don't agree with the outcome and present position, but there are mechanisms for change."

Challenged by the judge about Stormont debates and the use of petitions of concern to stop any bill being advanced, Mr McGleenan replied: "It cannot be denied that it's a live issue."

At one stage comparisons were drawn between the debate around same-sex marriage and judicial views on another area of moral and social controversy - assisted suicide.

Mr Justice O'Hara asked whether the courts should be more reticent about becoming involved in a debate over the right to life than intervening in the issue of gay marriage.

"The significant opposition to same-sex marriage appears to come primarily from people who hold very strong religious beliefs that marriage is a God-given right or institution between a man and a woman," he noted.

"They then (say) extending that to same-sex marriage would somehow diminish marriages of heterosexual couples."

The judge asked if there was any evidence to support the belief that heterosexual marriages would be undermined.

He was told it was one argument on the issue.

The case continues.

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