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Overturning the High Court’s declaration that the lack of equal recognition discriminated against humanists pursuant to Articles 9 and 14 ECHR by not protecting a manifestation of their belief, the Court of Appeal found that Article 31 of the Marriage (Northern Ireland) Order 2003 provides a basis for avoiding such discrimination by enabling the appointment of a humanist celebrant.

Background

In June 2017, the Laura Smyth and Eunan O’Kane were granted temporary authorisation for Humanist celebrant Isobel Russo to perform a legally valid and binding wedding. In the High Court, Justice Colton found that humanist ceremonies were a manifestation of humanist beliefs in general and that Ms Smyth’s desire to have a humanist officiant at her wedding was a manifestation of her humanist beliefs so that Article 9 was engaged.

In relation to the solemnisation of marriage, Justice Colton indicated that “the State had chosen to authorise the solemnisation of religious marriage ceremonies in recognition of those bodies’ beliefs. Having done so, it should provide equal recognition to individuals who held humanist beliefs on the basis of the judge’s findings that humanism did meet the test of a belief body and that a wedding ceremony conducted by a humanist constituted a manifestation of that belief”. Accordingly, Justice Colton concluded that there had been a breach of Ms Smyth’s rights under Articles 9 and 14 of the ECHR.

Justice Colton said that the significant public interest in controlling and regulating marriage could be achieved without discriminating against those who wished to manifest humanist beliefs

In light of the discrimination found, Justice Colton considered that he should read in the words “or belief” to those parts of the Marriage (Northern Ireland) Order 2003 which referred to “religious body” in Articles 14, 15, 16 and 17 of the Marriage (Northern Ireland) Order 2003.

Court of Appeal

The Attorney General lodged an appeal against the High Court’s decision, which was supported by the General Register Office (GRO) and the Department of Finance. The Attorney General submitted that British Humanist Association did not exercise a marriage ministry and Justice Colton was incorrect to rely on its objectives “for the purpose of establishing a nexus” between the Ms Smyths wish to have a particular form of marriage recognised by law and her underlying beliefs. And, given the existence of civil marriage, Justice Colton should have enquired into what was missing from a civil ceremony and whether this had a sufficiently close nexus with her underlying belief.

It was submitted that Justice Colton erred in concluding that the celebrant proposed by Ms Smyth was “in a relevantly comparable situation to those who are capable of being granted temporary authorisation to solemnise marriages pursuant to Article 14 of the 2003 Order”

Contending that there was no evidence to suggest that humanists “meet regularly for purposes connected with the manifestation of humanist beliefs”, the AG said that Justice Colton “…expanded the belief system element but has made no adjustment either to activity or purpose. That is impermissible judicial legislation”.

The AG argued that the GRO and the Department of Finance was justified in refusing the temporary licence due to the need to protect the dignity of marriage and prevent the commercialisation of the solemnisation of marriages.

The Court of Appeal said that “the right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance” and that there was “no dispute” that Ms Smyth’s humanist views are such as to deserve protection under Article 9 of the Convention. The dispute was whether the desire to have an officiant accredited by the BHA at her wedding is a manifestation of the her humanist beliefs. Agreeing with Justice Colton, the Court of Appeal said that the ceremonial act of marriage was a direct expression of Ms Smyth’s humanist beliefs, satisfying the test for manifestation of belief. As such, the Court was “entirely satisfied that the conduct of a humanist wedding ceremony by a humanist wedding officiant for a person holding humanist views is within the ambit of Article 9”.

The Court of Appeal said that the statutory prohibition of a humanist celebrant as the person solemnising a marriage would have constituted discrimination, but held that Article 31 of the Marriage (Northern Ireland) Order 2003 provides a basis for avoiding such discrimination by enabling the appointment of a humanist celebrant.

As such, the statutory prohibition would have constituted discrimination pursuant to Articles 9 and 14 ECHR in the case of Ms Smyth – however, Article 31 of the Marriage (Northern Ireland) Order 2003 provides a basis for avoiding such discrimination by enabling the appointment of Ms Russo without having to utilise the interpretive tool provided by section 3 of the Human Rights Act 1998.

The Court held that the fact that the person solemnising the marriage is appointed pursuant to Article 31 of the Marriage (Northern Ireland) Order 2003 rather than Article 14 did not give rise to any difference of treatment.

Accordingly the Court of Appeal allowed the appeal, quashing the mandatory Order made by Justice Colton and set aside his declaration but otherwise agreed with his judgment.

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