NI's rejection of marriage equality 'a breach of religious rights'

13 Aug 2015 Ryan Miller    Last updated: 14 Aug 2015

The recent marriage equality rally in Belfast
The recent marriage equality rally in Belfast

Local failure to bring forth marriage equality legislation matching the rest of the UK is set to be challenged in the High Court this autumn, on the basis that it is an infringement of the right to freely practice religion.

Northern Ireland’s refusal to allow same-sex marriages is set to be challenged in the courts – on the grounds that it infringes religious freedoms.

Two local men who married in London nearly a year ago - but who live and work here, where their union is effectively downgraded to a civil partnership - say current law discriminates against them and their Christian views.

The pair, who cannot be named, had been together for some time and opted not to get a civil partnership as it had no religious significance.

However, after the rest of the UK extended marriage rights to same-sex couples, they were married last September at a Unitarian church in London and now want to start a family.

Ciaran Moynagh, a partner in McLernon Moynagh Solicitors which represents the couple, told Scope: “They are saying the downgrading of their marriage isn’t lawful and one of the aspects is that they are arguing that their religious liberty is being infringed.

“The petitioner says that he has a belief in god, within the liberal Christian tradition, and he chose to have a religious marriage. Northern Irish law does not recognise their marriage as a marriage, and that therefore denies them their right to manifest their beliefs.”

Belfast High Court’s family division will hear their case, an application to declare their marriage as valid, and it is currently listed as a two-day hearing before Mr Justice O’Hara beginning on November 9 - meaning it will take place on the same day as the judicial review challenging the legitimacy of NI's lack of marriage equality, which is being taken forward by Grainne Close and Shannon Sickles, albeit that case is being fought with fundamentally different legal arguments.

Unlike most cases in the family court, this will be open to members of the public and to the media. Other agents in the case include our Department for Finance and Personnel, responsible for marriage law at Stormont, the NI Attorney General, and also the Crown Solicitors Office acting for Westminster’s Department for Culture Media and Sport, which oversees the relevant legislation in England.

Mr Moynagh said: “My clients are not activists, not in any way, they are not trying to directly change legislation. Their aim is simply to have their marriage recognised as what it is.

“They did not want to do this, court is a last resort, and they do not want to turn it into an adversarial argument, which has polar arguments and where extreme views are put forward in the media.”

The outlined arguments will be brought forward under Article 9 of the European Convention on Human Rights, which provides for freedom of thought, conscience and religion, and says:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Other aspects of the case will focus on Articles 8, 12 and 14 of the convention.

Broadly, their Article 9 argument will say current law does not allow them to manifest their religion (as per point 1, above) and that the legal limitations to this, such the downgrading of their marriage, are not necessary (point 2).

And, while the couple’s aim is solely to have their own marriage recognised – albeit this would then provide an avenue for other same-sex couples in the same circumstances – if their attempt fails they could follow other legal avenues.

Mr Moynagh continued: “If they are unsuccessful with their petition to have their marriage declared valid, then one potential remedy to this in the High Court is try and get a declaration of incompatibility.”

A declaration of incompatibility would essentially say that the current mixture of laws on marriage equality within the UK taken as a whole is incompatible with the ECHR and therefore invalid.

This would mean that some parts of the law would have to change – which would likely put extreme pressure on NI’s current lack of marriage equality.

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