Same sex marriage ban in Northern Ireland a veil for homophobia, court told
Maintaining the ban on same-sex marriage in Northern Ireland should not be used as a "veil for homophobia", the Court of Appeal was told.
Judges were told gays and lesbians have been wrongly excluded from legislation which allows those in the rest of the UK to wed.
Counsel for two couples challenging the prohibition made the claims after reasons for the current position were set out.
The legitimate aim, according to the relevant Stormont department, is to preserve and promote the institution of marriage between a man and a woman.
Unlike England, Scotland, Wales and the Republic of Ireland, Northern Ireland has still not legalised same-sex weddings.
But Grainne Close and her partner Shannon Sickles, along with Chris and Henry Flanagan-Kane, are seeking to overturn a ruling that the prohibition does not breach their human rights under European law.
In 2005 they became the first couples in the UK to enter civil partnerships, cementing their relationships in ceremonies at Belfast City Hall.
Last year a judge dismissed the case after finding that it was a matter for legislators rather than the courts.
Ms Close, Ms Sickles and the Flanagan Kanes claim they are being subjected to discrimination on the basis of their sexuality.
The state's failure to include the people of Northern Ireland in same-sex marriage legislation breaches their human rights, according to their case.
Prior to the collapse of devolution MLAs held five votes on the issue - with a narrow majority in favour of the move back on the last occasion in November 2015.
However, the Democratic Unionist Party deployed a petition of concern mechanism to block the motion.
Responding on day two of the case, counsel representing the Department of Finance detailed the position taken by former DUP ministers in statements to the Assembly.
Tony McGleenan QC told the court: "Based on those circumstances and statutory provisions, the legitimate aim can be characterised as the preservation and promotion of the institution of marriage in the form of a union between a man and a woman."
Pressed by Lord Chief Justice Sir Declan Morgan, no evidence was produced of any adverse impact on so-called traditional marriage since the 2013 Same Sex Couples Act was introduced in England and Wales.
Although the appeal judges cannot compel a change in the law, they could make a declaration sought by the two couples.
During exchanges Sir Declan indicated that if a functioning Executive was in place to re-examine the issue it would be "a very powerful argument for the court to stand back".
He stressed how the Secretary of State has the power to take action, but has chosen not to.
"These are relevant factors in seeing if this is an area where the court should express a view," the Chief Justice pointed out.
In closing submissions Ronan Lavery QC, for the couples, argued: "The 2013 Act is a game-changer, we now have a different definition of marriage in the UK."
Excluding Northern Ireland from that cannot be justified, the barrister insisted.
"The context of all this should not be forgotten - a history of discrimination against gays and lesbians.
"They were described pejoratively as dykes and fruits, that continues to this day and its something we need to address.
"One needs to be very conscious of that history... and that the maintenance of this provision and resistance to its removal is not simply a veil (for) homophobia and hiding behind a traditional concept of marriage."
Proceedings were adjourned until later this month, for further arguments on Attorney General John Larkin QC's claim the applicants lack legal standing to bring the action.
Belfast Telegraph Digital