Strasbourg case law prevents success of same-sex marriage petition in Northern Ireland

The High Court of Northern Ireland has today delivered its judgment in In Re X, which is a case relating to same-sex marriage.

The High Court has held that the human rights of a man who entered into a same-sex marriage in England in 2014 (a part of the UK that permits same-sex marriage) have not been violated by virtue of the fact that in Northern Ireland this marriage is not recognised (and is only recognised as a civil partnership).

In reaching this decision, the High Court was significantly influenced by the case law of the European Court of Human Rights on same-sex marriage. The Strasbourg Court has repeatedly held that Article 12 of the European Convention on Human Rights enshrines the "traditional concept" of marriage as being between a man and a woman and cannot be construed as imposing an obligation on States to grant access to marriage to same-sex couples.

Mr Justice O’Hara, sitting in the High Court, stated: "It is not open to me to give an interpretation of the Convention which is quite different from that of the Strasbourg Court ... I must follow clear and constant jurisprudence of the Strasbourg Court".

The High Court's judgment shows the limitations that can be placed on domestic courts by 
the European Court of Human Rights in respect of matters relating to same-sex marriage

If the Strasbourg Court evolved its jurisprudence on same-sex marriage - particularly under Article 12 of the Convention - and recognised that the prohibition of same-sex marriage amounts to a violation of human rights and fundamental freedoms, then this would cascade down to the domestic courts of European states.

At present, however, the European Court of Human Rights is stifling domestic courts and preventing them from addressing and rectifying the issue of marriage inequality based on sexual orientation.