The cause of marriage equality for same-sex couples has been growing globally for a number of years with many European and Latin American countries moving quickly to legislate and with legislation and strategic litigation furthering the cause in the United States. The passing of same-sex marriage legislation in England, Scotland and Wales coupled with the passing of the marriage referendum in the Republic of Ireland has left Northern Ireland as the only region within the UK or Ireland which neither conducts nor recognises same-sex marriages.
These legislative changes which are happening around the jurisdiction of Northern Ireland have led to an increase in speculation as to how or when equal marriage can be introduced. In light of the successful marriage referendum in the Republic of Ireland, many activists and politicians have intimated that a similar campaign could introduce equal marriage in Northern Ireland.
It is, however, important to remember that the referendum in the Republic was used because it was the only way to introduce equal marriage. Had the responsibility to introduce fallen to Dail Eireann, equal marriage would have already been introduced because all of the main political parties supported its introduction. However, the understanding of the government and its legal advisors was that the constitution of the Republic would have to be amended to allow for same-sex marriage and only a national plebiscite or referendum could amend the constitution in this way.
As UK has no written constitution there is not the same tradition of referenda to amend or create laws. In the UK, Parliament is sovereign and referenda are not legally binding. Although referenda may indicate public support for an issue, Parliament still has the authority to give effect to the will of the public or legislate in another way. The Rainbow Project believes that a referendum is not the solution to marriage inequalities in Northern Ireland. We know that there would not be the same consensus among political parties as there was in the Republic, likely leading to a more divisive and contentious campaign, without a certain outcome, which would still have to be voted on by the Northern Ireland Assembly. As the Northern Ireland Assembly has now failed four times to introduce marriage equality, we see no reason that a referendum result would compel those members, who are intractably opposed to its introduction, to vote for a marriage equality bill, even if it was supported by the public.
Due to the barriers which exist to a legislative solution to marriage for same-sex couples in Northern Ireland, The Rainbow Project has turned to strategic litigation. When same-sex marriage became lawful in England and Wales in March 2014, we understood that although couples from Northern Ireland could legally marry in England or Wales, they would only be recognised as civil partners when they returned to Northern Ireland. To us, this creates an anomalous situation where someone has their relationship reclassified against their will when they move to another part of the same state i.e. the United Kingdom. We are of the opinion, that if someone is married in the UK, then they are married everywhere within the UK and that any attempt to reclassify their relationship is an unlawful invasion of their rights to privacy, family life and marriage.
To this end, we are now supporting a couple who were lawfully married in England in 2014 who are seeking to have their marriage recognised in Northern Ireland. We are asking the family court to make a declaration of marriage; essentially stating that their marriage was lawfully conducted and that their marriage remains lawful in Northern Ireland. The role of The Rainbow Project in this test case is to source and support the clients. Our external solicitor had prepared the papers, sought counsel, and engaged with PILS to secure funding for the challenge.
Our clients wanted to be married, they did not want to enter a civil partnership. Had they wanted a civil partnership, they could have entered into one in Northern Ireland. The best option for them was to get married in England, as many people from Northern Ireland do. When they came back to Northern Ireland their relationship was downgraded to a civil partnership. We do not think that this is reasonable. We do not feel that this achieves any kind of legitimate state interest and we strongly feel that there is a public interest in ensuring that a person’s marriage is recognised everywhere within the state they live and cannot be reclassified without their consent.
We are not, at this stage, asking the court to declare that same-sex couples may marry in Northern Ireland, but simply to state that if someone is married they must be recognised as married. The referendum result in the Republic makes the need for recognition of marriages even more urgent. We could now have a situation where a married couple who live in Derry/Londonderry are not recognised as married at home but if one partner travels across the border to work in Donegal, they are recognised as married but the partner who remains in Northern Ireland is not recognised as married. This is a truly unreasonable position for any government to hold and deliberately devalues a same-sex relationship comparative to an opposite-sex relationship without providing any evidence as to why they should be treated differently.
It is important to note that recognition of marriages is only one part of the puzzle, the second is to ensure that same-sex marriages can be conducted in Northern Ireland. However, we believe that the most strategic outcome is to secure recognition of marriages in Northern Ireland and then either allow the Assembly to legislate for marriages to be conducted in Northern Ireland or challenge the failure of the government to introduce same-sex marriage in Northern Ireland.
As our recent rally for marriage equality in Belfast City Centre, with our partners Amnesty International and the Irish Congress of Trade Unions, demonstrated there is enormous public support for the introduction of marriage equality in Northern Ireland. Thousands of people attended to make their voices heard. If legislative or referendum solutions are not practical to achieving this, then the public interest is best served by strategic litigation.
Reprinted 11th Edition: 22nd June 2015