Tag Archives: law

Oh happy [joyous/gleeful/gay] day!

Today is a great day for marriage equality even if it related to two court cases.

First in Belfast the High Court gave the go ahead for the judicial review into the ban on same-sex marriage in Northern Ireland going ahead. It is the first step of a long process. Seeing as some of the politicians on the hill and in a few of our council chambers are refusing to budge on this issue yet again the LGBT+ community of Northern Ireland have had to lean on the will of the courts once again.

Meanwhile in Washington the US Supreme Court has ruled that equal marriage is a constitutional right that should extend to all fifty states.

This latest verdict takes away one of the lynchpins of DUP opposition. There was always the argument that the largest nation in the free world did not have equal marriage across the whole nation so the UK did not have to do likewise. Well that has now changed and with the exception of Germany who like Northern Ireland have the largest party a union of fundamentalist Christians the rest of the Western World is now moving towards marriage equality.

Peter Lynas will no doubt to continue to argue that we should call Northern Ireland a backwater on the issue of marriage equality. But when your list of nations to compare us to now is largely Eastern Europe, Africa (where some want to lock up or kill all the LGBT community) and China. It is hardly the company that civilised society should aim to be keeping.

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Summary of the Ashers court case

Today ended the third day of the court case of Gareth Lee v Ashers Ltd. in Laganside Court Belfast. A good source of in court reporting was the Tweets of Belfast Telegraph Deborah McAleese. It is largely from there that we have pulled the following facts from the proceedings.

The facts of the purchase:

The first thing to note is that the order was placed at the Royal Avenue branch of Ashers six stores. For those who do not know Belfast this is the main shopping street in Belfast City Centre. The store is only slightly down the road on the other side of the street from Tesco and the Castle Court shopping centre is across the street on the other side. This location is also less than 5 minutes walk from the LGBT Centre on Waring Street where Queer Space who were ordering the cake and Gareth Lee was based, also Gareth had used them many times before, which ought to shut up conspiracy theorists.

The order was talked about with Karen McArthur, the mother of the general manager and herself a director of the company. She did not tell Mr Lee that there would be any issues with the cake but took full payment along with the order. There was no design work having to be done by Ashers as the artwork was provided with the order.

The cake was to have the name of the campaign organisation Queen Space and the message Support Gay Marriage. No mention of Ashers on the cake.

There was a leaflet displaying Ashers cake service which the members of the McArthur family admitted doesn’t mention any limitations to graphics that can be provided.

The evidence of Karen McArthur

She said she knew in her heart at the time she took the order that the company could not complete the order. She said that the reason she did not tell Mr Lee this at the time was because she didn’t want to embarrass him or cause a confrontation in the shop.

The reason Mrs McArthur knew she would be unable to complete the order was the message was contrary to her Christian belief. However, he also acknowledged that they leaflet also carried pictures of a Halloween cake with witches on it.

She also when asked, “Do you not think you should have immediately told Mr Lee (the order would not be fulfilled)?” she replied no.

The evidence of Daniel McArthur

The son and managing director, admitted that after the issue was brought to his attention he raised it with a elder in his church for his view. He also admitted that he had never really thought about the witch imagery being contrary to the same Christian belief, though said he was unaware of that image being on the leaflet as another member of staff had designed it. However, it was pointed out to him in court that the literature had been available for about 2 years.

He also said “We doing it in defiance of the law. Before God it’s not something we could do.” in relation to turning down the order.

The conclusions

The lawyer for Ashers said that this wasn’t a case of sexual discrimination and that a heterosexual ordering the same cake would be turned away. But the lawyer for Mr Lee said that with the word gay on the cake and the messaging it was clearly intended for a group that would involve gay people and supported them, even if the plaintiff wasn’t, therefore it was indirect discrimination.

The lawyer for Mr Lee also said that the reason given in public by the McArthurs for their refusal was based on their religious views. And therefore it was impinging his political and sexual orientation rights. It was also he argued breaching contract law as the payment was taken upon the full conditions being expressed.

The lawyer for the McArthurs argued that they shouldn’t have to put a message they felt unable to endorse unto a cake, but the lawyer for Mr Lee claimed that they weren’t being asked to endorse the message and nobody would ask if the bakery had done on seeing the cake. He finished with the fact that once a barrister enters into a contract to represent someone he doesn’t necessarily have to agree with gay marriage to defend a client over their views of it.

 

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Northern Ireland gay adoption ban unlawful

Earlier this year we raised the issue of the discriminatory Northern Ireland policy preventing Lesbian and Gay couples from adopting.

Today in the High Court in Belfast Mr Justice Treacy has deemed that the ban was unlawful. He said:

“Excluding persons from the whole adoption process on the sole basis of their relationship status can only serve to narrow the pool of potential adopters which cannot be in the best interests of children.”

Unlike in the rest of the UK legislation in Northern Ireland deliberately went out of its way to exclude those in civil partnerships from adoption, while maintaining that individuals could still legally adopt. As we said earlier it meant that a lesbian or gay man were not prevented from adopting as long as they had no partner, or at least not one recognised by the state. But if they were committed to a relationship then they would not be allowed to adopt. Speaking on this issue Mr Justice Treacy said:

“In choosing to make a public commitment to one another, they become totally excluded both as individuals and as a couple from eligibility to adopt, ie not eligible at all.

“This is quite irrational and plainly unlawful.

“The present legislation essentially entails that a gay or lesbian person must choose between being eligible to adopt, or affirming their relationship in public via a civil partnership ceremony.”

The Northern Ireland Attorney General, John Larkin QC, had argued on behalf of the Department of Health that the change wouldn’t be in the best interests of the children, contending that Northern Ireland’s adoption laws were to ensure child welfare rather than satisfy the wishes of would-be parents. But Mr Justice Treacy stated:

“The rigorous scrutiny and assessment of suitability will ensure that only persons capable of providing a loving, safe and secure adoptive home will ultimately be considered.”

He acknowledged that that issues such as sexual orientation, lifestyle, race and religion must be taken into account, but added:

“But they cannot be allowed to prevail over what is in the best interests of the child.”

With the high number of children in Northern Ireland waiting for adoption the Equality Commission’s Chief Commissioner, Professor Michael O’Flaherty said of the ruling:

“Given the high numbers of children in care, who need a family in Northern Ireland, the importance of this case in widening the pool of prospective parents cannot be overstated. We are therefore delighted with this outcome.

“It brings Northern Ireland law in line with the rest of the UK and means that couples who are not married, those in civil partnerships and same sex couples will be now be allowed to apply to adopt.”

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Is Northern Ireland’s adoption policy discriminatory?

Gay fathersThe Belfast Telegraph yesterday decided to revisit the issue of adoption in Northern Ireland. It points out an interesting dichotomy of the Stormont Amendments to Articles 14 and 15 of the Adoption (Northern Ireland) Order 1987 as amended (see red) in 2005 to take account of The Civil Partnership Act 2004.

Adoption by a Married Couple

14.—(1) An adoption order shall not be made on the application of more than one person except in the circumstances specified in paragraphs (2) and (3).

(2) An adoption order may be made on the application of a married couple where both the husband and the wife have attained the age of 21 years.

(3) An adoption order may be made on the application of a married couple where—

(a)the husband or the wife—

(i)is the father or mother of the child; and

(ii)has attained the age of 18 years;

and

(b)his or her spouse has attained the age of 21 years.

(4) An adoption order shall not be made on the application of a married couple unless at least one of them is domiciled in a part of the United Kingdom, or in any of the Channel Islands or in the Isle of Man.

Adoption by a single person

15.—(1) An adoption order may be made on the application of one person where he has attained the age of 21 years and—

(a)is not married or a civil partner, or

(b)is married and the court is satisfied that—

(i)his spouse cannot be found, or

(ii)the spouses have separated and are living apart, and the separation is likely to be permanent, or

(ii)his spouse is by reason of ill-health, whether physical or mental, incapable of making an application for an adoption order.

2) An adoption order shall not be made on the application of one person unless he is domiciled in a part of the United Kingdom, or in any of the Channel Islands or in the Isle of Man.

(3) An adoption order shall not be made on the application of the mother or father of the child alone unless the court is satisfied that—

(a)the other natural parent is dead or cannot be found or, by virtue of section 28 of the Human Fertilisation and Embryology Act 1990 (disregarding subsections (5A) to (5I) of that section), there is no other parent, or

(b)there is some other reason justifying the exclusion of the other natural parent,

and where such an order is made the reason justifying the exclusion of the other natural parent shall be recorded by the court.

So lets take the example of two individuals:

Mark aged (35) is a gay man who in 2005 got civil partnered to his lover of the past 5 years Peter (36). They live in Antrim and are a consultant and Antrim Area Hospital and an Air Traffic Controller and Belfast International Airport. Under the articles above they cannot adopt a child despite them both loving the various nephews and nieces that their respective brothers and sisters often leave them in charge of for babysitting duties.

James is a 22 year old gay man from Belfast. He is working for the Civil Service as an Administrative Officer. He too has nephews and a niece but his family disowned him at the age of 16 when he told them he was gay. He has very little contact with children as all of his friends are other gay men that he spends his weekends with down at or near Union Street. Under the above articles there is nothing stopping him adopting as a single person should he so choose, he can adopt if he wants and his status is still single when he does.

Believe it or not for all the talk of family values from politicians in Northern Ireland preventing gay couples adopting there is nothing to stop gay singles from doing so under the law. Bizarrely the Northern Ireland Assembly via myopia, prejudice, intent or accident have allowed lesbian and gay singles to do something that lesbian and gay couples cannot do.

May I suggest the following changes to Section 14:

Adoption by a Married Couple

14.—(1) An adoption order shall not be made on the application of more than one person except in the circumstances specified in paragraphs (2) and (3).

(2) An adoption order may be made on the application of

(a) a married couple where both the husband and the wife have attained the age of 21 years.

(b) a civil partnership where both partners have attained the age of 21 years.

(3) An adoption order may be made on the application of a married couple or civil partnership where—

(a)the husband or the wife or one of the civil partners

(i)is the father or mother of the child; and

(ii)has attained the age of 18 years;

and

(b)his or her spouse or civil partner has attained the age of 21 years.

(4) An adoption order shall not be made on the application of a married couple or civil partnership unless at least one of them is domiciled in a part of the United Kingdom, or in any of the Channel Islands or in the Isle of Man.

There that didn’t hurt too much, did it? I look forward to the debate in Stormont.

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