In the past few days, bills have been introduced at Westminster with the intent of bringing same sex marriage to NI. The first appeared in the house of Lords under Lord Hayward and the second appeared in the house of commons under Conor McGinn; see details here: https://www.belfasttelegraph.co.uk/news/northern-ireland/westminster-bills-call-for-samesex-marriage-in-northern-ireland-36747032.html.

The first thing to be said about this matter is that whilst NI has MPs that sit in Westminster, Westminster is not representative of NI; our assembly represents us in which case this matter should be devolved to the assembly. Given the current circumstances of our assembly, we are unable to deal with this issue locally; but that does not entail that one ought to seek the introduction of same sex marriage in NI by an elected body which does not represent NI. What in fact is happening here is that people with a certain view about the nature of marriage are seeking to have that view enshrined in law regardless of the process that gets us there.

That then leads nicely to the second point, since this is not merely a matter of political expediency but a fundamental disagreement over the nature of marriage and whether or not same sex relationships are in fact marriages. If we turn to the European Convention of Human Rights and its article on marriage (article 12) it reads as follows: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’. So if we begin here, the human right to marry is a right that men and women have and it involves founding a family. This is important in two respects: firstly, it ties the right to marry to men and women, hence it does not envisage such a right as pertaining to members of the same sex; secondly, it envisages this right as being involved in founding a family, hence those who marry have the right to found a family. The language is important in this latter respect because it does not say ‘to have a family’ but ‘to found a family’. Given that this right envisages the founding as opposed to merely having of a family, it is natural that it links marriage with men and women, i.e. opposite sex couples, since it is only men and women who are able to found, as opposed to have, a family. Thus, what this right encapsulates is that form of human relationship that is found in every society whereby men and women come together so as to found a family. This does not exclude those who are infertile, since the infertile can come together in such a relationship, but owing to circumstances accidental to that relationship, e.g. matters pertaining to health, a family cannot be founded; yet it does exclude same sex couples since same sex couples cannot found a family, not because they are infertile but because the relationship as such is not one that is ordained to the founding of a family. Hence there is no human right to same sex marriage.

Now whilst there may be no human right to a same sex marriage, some would argue that there ought to be a political right. And this is where local legislative bodies come in – to give same sex couples the same legal protections as opposite sex couples. But in order to give same sex couples the same legal protections as opposite sex couples one need not legislate for marriage and thereby envisage in law something that the ECHR doesn’t even envisage; rather one can legislate for civil partnerships. In the UK at least there is no substantive difference with regard to legal rights and entitlements between a civil partnership and a marriage. Indeed the document on the UK government website lays this out very clearly with the only differences involving technical legal and administrative issues over the difference in the kinds of relationships involved (you can access the document here: https://www.gov.uk/government/publications/comparison-of-civil-partnership-and-marriage-for-same-sex-couples).

So same sex marriage is not a human right as envisaged by the ECHR, and same sex couples have access to all the same rights and privileges as opposite sex couples by being able to avail of civil partnership legislation. Consequently, there is no reason to introduce same sex marriage into NI.

Dr Gaven Kerr